Gorsuch, former antitrust litigator, picked for Supreme Court

19 March 2017 10:55am

1 February 2017. By Leah Nylen.

President Donald Trump selected Tenth Circuit Judge Neil Gorsuch as his nominee for the US Supreme Court Tuesday, beginning what is likely to be a contentious confirmation to replace the late Justice Antonin Scalia, who died nearly a year ago.

Gorsuch, regarded as a staunch conservative whose eloquent writing style mirrors that of Scalia's, worked as an antitrust litigator before his appointment to the bench. In brief remarks after his nomination was announced, Gorsuch pledged to serve with "impartiality, independence, collegiality and courage."

"I pledge that if I am confirmed I will do all my powers permit to be a faithful servant of the Constitution and this great country," Gorsuch said, calling the Constitution the "greatest charter of human liberty the world has ever known."

Whether Gorsuch is confirmed remains to be seen. Some Senate Democrats have already pledged to oppose Trump's choice in retaliation for Republicans' refusal last year to consider President Barack Obama's Supreme Court nominee, Merrick Garland.

Democrats hope to use procedural rules that would require a 60-vote majority to move forward with Gorsuch's nomination. The Republicans currently hold 52 seats in the 100-member body, meaning they would need to persuade eight Democrats or Independents to vote in favor of advancing the nomination.

In 2005, a bipartisan group of senators, known as the "Gang of 14" banded together to ensure that judicial nominations couldn't be blocked. All but three of those senators have since died or retired, and the only remaining members are Republicans.

Given the hard feelings over the Garland nomination, few Democratic senators are likely to want to reach across the aisle to approve Trump's pick. In a release minutes after the announcement, Patrick Leahy, a senior Democrat on the Senate Judiciary Committee, which considers judicial nominations, promised close scutiny of Gorsuch and his record, though he didn't reject the nomination outright.

Still there may be some Democratic defectors. West Virginia Democrat Joe Manchin, whose state voted in favor of Trump by 41 percentage points, for example, has criticized his fellow senators for presumptively opposing Trump's nominee.

During a briefing with reporters earlier Tuesday, White House spokesman Sean Spicer downplayed potential efforts to block Trump's nominee.

"Democrats can try to obstruct, but at the end of the day the will of the American people will overcome that," Spicer said.

Gorsuch, 49, has served on the US Court of Appeals for the Tenth Circuit in Denver since 2006. Raised in Denver, Gorsuch is the son of Ann Gorsuch Burford, the controversial head of the Environmental Protection Agency during the Reagan administration. A graduate of Columbia University, Harvard Law School and a Marshall Scholar at Oxford University, Gorsuch is well-connected to conservative legal circles, having written articles for the National Review, a conservative magazine founded by Bill Buckley, and for the Cato Institute, a libertarian think tank. While in private practice, Gorsuch represented the US Chamber of Commerce, the nation's largest business lobby, in some cases before the Supreme Court. He also litigated antitrust, securities fraud and telecommunications matters.

In the 1990s, Gorsuch wrote several articles calling for term limits for members of Congress, and also state judicial term limits. He also wrote a book, "The Future of Assisted Suicide and Euthanasia" published by Princeton Press in 2006, opposing assisted suicide. In 2005 during the George W. Bush administration, he served as principal deputy to associate Attorney General Robert McCallum Jr., where he was also appointed to the Justice Department's intellectual property task force.

After law school, Gorsuch clerked for Justice Byron White, a Democrat and the first Coloradan to serve on the Supreme Court, and Justice Anthony Kennedy, a Republican nominated by President Ronald Reagan. Gorsuch has cited both judges as inspirations.

"As a judge, I hope to emulate the respect for the rule of law, for the decisions and judgments of the elected branches of government, and for the equality and dignity of all persons that shines through in the work of two of my former bosses, Byron White and Justice Kennedy," Gorsuch said at his swearing-in in 2006.

Gorsuch would be one of the few Supreme Court justices to have an affinity for antitrust. In private practice at Kellogg, Huber, Hansen, Todd, Evans & Figel, he specialized in complex civil litigation, including antitrust, securities fraud and telecommunications matters.

While at Kellogg, he represented Conwood Company, a moist snuff tobacco manufacturer, which successfully sued United States Tobacco Company for antitrust violations and was awarded $350 million in damages, which was automatically trebled under US antitrust law to more than $1 billion. The US Court of Appeals for the Sixth Circuit upheld the jury award in 2002.

For the past several years, Gorsuch has also taught antitrust law at University of Colorado, Boulder.

On the bench, he has authored opinions on the Sherman Act's Section 2 refusals to deal, finding a hospital, Mercy Medical Center of Durango, didn't have to share facilities with its competitors, Four Corners Nephrology.
In 2013, he wrote the Tenth Circuit's opinion nixing Novell's antitrust suit against Microsoft. Novell, the maker of WordPerfect, alleged that Microsoft violated antitrust laws when it stopped offering certain features of Windows 95.

On regulatory matters, Gorsuch has written critically of the Supreme Court's 1984 decision in Chevron vs. Natural Resources Defense Council, which requires that courts defer to an implementing agency's interpretation of a statute if a statute is ambiguous. The so-called Chevron doctrine is opposed by Republicans, and House Judiciary Charmain Robert Goodlatte has prioritized legislation to pull back on it.

In a 2014 decision, Gorsuch wrote the majority opinion, and then his own 22-page concurrence calling the Chevron decision "no less than a judge-made doctrine for the abdication of the judicial duty."

Chevron permits "executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers' design," he said.

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