Gorsuch Confirmation Hearings and States and Local Governments: Days 1-3 Update

Confirmation hearings generally follow a predictable course; Judge Gorsuch’s hearings have been no exception. Senators from the other side of the aisle as the President ask the nominee pointed questions on controversial topics which the nominee does his or her best to politely avoid answering. As a result, many issues of interest to states and local governments receive little meaningful attention.

While a friendly Senator (Flake, R-AZ) asked Judge Gorsuch whether a particular case he ruled in was consistent with the “principle of states as laboratories of democracy” and another friendly Senator (Crapo, R-ID) asked Judge Gorsuch to discuss the Tenth Amendment, federalism was rarely discussed as such and preemption wasn’t discussed at all. Likewise, many of the issues of particular importance to local governments—qualified immunity and property rights—also were not discussed.

Judge Gorsuch did say numerous times that judges should not act as legislators. “I get four law clerks for one year at a time. If you were to make laws, you wouldn’t design a system where you’d let three older people with four law clerks straight out of law school legislate for a country of 320 million people.”

Judge Gorsuch was also not asked about his concurring opinion from last year in Direct Marketing Association v. Brohl , in which he strongly implied that given the opportunity the U.S. Supreme Court should overrule Quill Corp. v. North Dakota (1992). In Quill, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax.

The issue of most interest to states and local governments that was discussed more at length was Justice Gorsuch’s views on Chevron deference.

In Chevron v. NRDC (1984) the Supreme Court held that courts should defer to reasonable agency interpretations of ambiguous statutes. States and local governments generally prefer that courts not defer to federal agency regulations because this deference gives federal agencies a lot of power.

Less than six month ago, Judge Gorsuch criticized Chevron deference in a concurring opinion in Direct Marketing, leading to speculation that if he becomes a Supreme Court Justice he would vote to overrule Chevron. When asked about this concurring opinion Judge Gorsuch stated that he wrote separately “to tee up questions for my bosses [the Supreme Court].” He continued:  “I don’t know how I would rule if I were a Supreme Court justice on the question.”

Three additional cases/topics came up repeatedly during the confirmation hearings, other than whether he believes in precedent [summary answer:  Generally I believe in it; I have written a book about it!]. Regarding Roe v. Wade (1973) (abortion) and Citizens United v. FEC (2010) (campaign finance), Judge Gorsuch avoided expressing opinions on these cases noting they are the “law of the land.” He was also asked to defend his dissenting opinion in the “frozen-trucker” case where the majority of the court ruled in favor of a truck driver who claimed he was wrongfully fired for disregarding his supervisor’s instructions to stay with a broken down trailer in freezing weather.

Unsurprisingly, Judge Gorsuch came to the hearings prepared. When accused of not being a friend to the “little guy” he cited a long list of cases where he ruled in favor of the “little guy.” When asked if he is an originalist, he rejected being labeled and pointed to cases where liberal Justices have tried to determine the framer’s intent in interpreting a provision of the U.S. Constitution. More fundamentally, he tried to portray himself as well within the legal mainstream. He noted that he rarely dissents, but when he has, he has done so “in about equal numbers from judges appointed by presidents from the two parties.”