Overlawyered: Chronicling The High Cost Of Our Legal System

Neil Gorsuch on the Senate judicial confirmation process

Judge Neil Gorsuch’s first call after being nominated was to Judge Merrick Garland, “out of respect.”

If there is a relationship of esteem between the two, it may have something of a history. In 2002, as a Washington litigator before his elevation to the Tenth Circuit, Gorsuch wrote a piece deploring how Senators had stalled the nominations to the D.C. Circuit of Garland and another nominee who was to become well-known:

…some of the most impressive judicial nominees are grossly mistreated. Take Merrick Garland and John Roberts, two appointees to the U.S. Court of Appeals in Washington, D.C. Both were Supreme Court clerks. Both served with distinction at the Department of Justice. Both are widely considered to be among the finest lawyers of their generation. Garland, a Clinton appointee, was actively promoted by Republican Sen. Orrin Hatch of Utah. Roberts, a Bush nominee, has the backing of Seth Waxman, President Bill Clinton’s solicitor general. But neither Garland nor Roberts has chosen to live his life as a shirker; both have litigated controversial cases involving “hot-button” issues.

As a result, Garland was left waiting for 18 months before being confirmed over the opposition of 23 senators. Roberts, nominated almost a year ago, still waits for a hearing — and sees no end to the waiting in sight. In fact, this is the second time around for Roberts: he was left hanging without a vote by the Senate at the end of the first Bush administration. So much for promoting excellence in today’s confirmation process.

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February 2 roundup

  • “Louisiana Police Chief: Resisting Arrest is Now a Hate Crime Under State Law” [C.J. Ciamarella, earlier on so-called Blue Lives Matter laws here, here, etc.]
  • Agency interpretive letters are the wrong way to enact new federal law [Ilya Shapiro and David McDonald on Cato amicus in school bathroom case, Gloucester County School Board v. G.G.]
  • “Thousands of business threatened by ADA lawsuits” [Justin Boggs, Scripps/NBC26]
  • “Reforming The Administrative State — And Reining It In” Hoover Institution panel with Adam White, Oren Cass, and Kevin Kosar, moderated by Yuval Levin [video, related Adam White paper, “Reforming Administrative Law to Reflect Administrative Reality”].
  • New Hampshire: “Wal-Mart told to pay pharmacist $16 million for gender bias” [Reuters]
  • Congress seldom has acted as if it believed strongly in D.C. home rule and it’s unlikely to start now [Ryan McDermott, Washington Times, thanks for quotes]

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Neil Gorsuch nominated to Supreme Court

I am a big fan of the work of Tenth Circuit Judge Neil Gorsuch and was very happy that President Donald Trump picked him last night for the Supreme Court vacancy.

Writing in the Wall Street Journal, David Rifkin and Andrew Grossman first praise Gorsuch’s eloquent and humane style of opinion-writing, then get down to particular cases. Many are of interest to those interested in resisting excessive government power, especially when centralized in Washington:

…Judge Gorsuch is among the judiciary’s most consistent and adept practitioners of textualism, the approach Scalia championed….

Looking to the “original public meaning” of the Fourth Amendment, for example, Judge Gorsuch has rejected the government’s view that a search warrant could be applied across jurisdictional lines. He also disputed its claim that police officers may ignore “No Trespassing” signs to invade a homeowner’s property without a warrant.

What about the Constitution’s separation of powers, intended to safeguard liberty? Judge Gorsuch has been at the vanguard of applying originalism to the questions raised by today’s Leviathan state, which is increasingly controlled by unaccountable executive agencies. These questions loom large after the rash of executive actions by President Obama, and now the whiplash reversals by the Trump administration.

The deference that judges now must give to agencies’ interpretations of the law, he wrote in an opinion last year, permits the executive “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.”

Judge Gorsuch added: “Maybe the time has come to face the behemoth.” His addition to the Supreme Court would give the justices a better chance than ever to do precisely that.

Some more links:

  • More background on the judge: Denver Post, Ramesh Ponnuru/NRO, Ilya Shapiro;
  • He won Senate confirmation by voice vote in 2006 [hearings and related documents; floor debate]
  • 11/9 Coalition on his civil liberties/Bill of Rights stands, including Fourth Amendment rulings;
  • A key Gorsuch case on religious liberty: prison with sweat lodge for Native Americans broke the law by denying access to one inmate (Yellowbear v. Lampert). Extraordinarily clear and well written, the opinion also helps illustrate why Gorsuch, if confirmed, may fill Scalia’s place as the Court’s most talented writer.
  • Everyone remember to switch positions on whether the Supreme Court is perfectly functional with eight members!
  • Former Obama administration Acting Solicitor General Neal Katyal, in the New York Times (“Why Liberals Should Back Neil Gorsuch”);
  • The judge in a 2008 dissent: don’t make it too easy to sue litigation experts who change their minds [our first, second Overlawyered posts]
  • Just don’t tell anyone that he’s a Cato Institute author [Policy Analysis 1998, defense of term limits constitutionality]

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Resignations in protest, and the fire-me-now alternative

Re: President Trump’s firing last night of Acting Attorney General Sally Yates, from the previous administration, who declined to argue in court on behalf of his executive order on visa admissions, my own reaction was as follows:

* The most appropriate move for Yates would have been to resign. Noisy resignations are fine in circumstances like these.

* Given her announcement, her removal from the job was entirely routine and to be expected. The difference between what happened and a noisy resignation is not wide enough that anyone should care.

* The Saturday Night Massacre under Nixon misses the mark as an analogy for at least two reasons: Archibald Cox was an independent special prosecutor, a job designed purposefully not to be answerable to the executive branch leadership, and his charge was to investigate Watergate, that is, offenses by the White House.

More views from Ken White, Josh Blackman, Jonathan Adler, Jack Goldsmith, and Ben Wittes.

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Labor and employment roundup

  • “The Gathering Storm in State Pensions” [Cato Podcast with Peter Constant] “Los Angeles’ Pension Problem Is Sinking The City” [Scott Beyer]
  • “DC’s Paid Family Leave Bucks the Trend — and Economics” [Ike Brannon, Cato]
  • Federalist Society lawyers convention panel on gig economy moderated by Third Circuit U.S. Court of Appeals Judge Thomas Hardiman and with panelists Randel K. Johnson (U.S. Chamber), Bill Samuel (AFL-CIO), Mark Floyd (Uber), and Mark Brnovich (Attorney General, Arizona);
  • “How to Avoid Discrimination in Hiring, While Complying with [Export Security Control] Laws” [Ashley Mendoza and Alfredo Fernandez via Daniel Schwartz]
  • “The case for non-compete agreements” [David Henderson]
  • “This economic reasoning is right/For Zero, not for Fifteen, should we fight.” A minimum wage sonnet [Sasha Volokh]

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Medical roundup

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NYC responds to jury verdict on speeder-friendly street design

After a biker was badly injured by a speeding motorist on Gerritsen Avenue in Brooklyn, a jury in 2011 held New York City legally responsible for not having more speeder-unfriendly street design. The city is now instituting such changes, which according to one advocate should no longer be deemed “subject to debate.” The city was held 40 percent liable, but paid 95 percent or $19 million of a $20 million settlement. “‘This ruling from New York’s highest court puts an end to the notion that traffic safety improvements should be subject to debate and contingent on unanimous local opinion,’ said Paul Steely White, Executive Director of Transportation Alternatives. ‘The scientific verdict has been in for several years: traffic calming works to save lives and prevent injuries.'” [Alissa Walker, Curbed]

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SCOTUS will look at patent forum-shopping

The Supreme Court has granted certiorari in the case of T.C. Heartland v. Kraft Foods, which turns on a minor detail of statutory interpretation but raises high stakes indeed: if the Court agrees that a 2011 enactment narrowed venue in patent suits, it could end the current arrangement in which plaintiffs are free to steer most such suits into just a few friendly jurisdictions. My write-up at Cato concludes:

My own suspicion is that not in a thousand years would a thoughtful deliberative process have entrusted the future care of intellectual property in America’s tech sector to the bench and bar of Marshall, Texas, population 24,501. But that’s in no way a reflection on the quality of the able if wily legal talent to be found in East Texas. It’s a reflection on the quality of the lawmakers in the U.S. Congress.

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