Schumer's warning about Gorsuch is dead wrong

Chuck Schumer Neil Gorsuch presser sot_00001425
Chuck Schumer Neil Gorsuch presser sot_00001425

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Schumer: Gorsuch's rulings are cause for alarm 01:31

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  • Danny Cevallos: Schumer argued that Gorsuch is biased toward the powerful in his rulings
  • However, Gorsuch is a true judge who makes decisions on the basis of the law and not politics, Cevallos says

Danny Cevallos (@CevallosLaw) is a CNN legal analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the US Virgin Islands. The opinions expressed in this commentary are his.

(CNN)Senator Chuck Schumer is warning his colleagues about Neil Gorsuch in advance of the judge's Supreme Court confirmation hearings this week.

Schumer told reporters that Gorsuch "may act like a neutral, calm judge, but his record and his career clearly show he harbors a right wing, pro-corporate, special interest agenda."
    "He enacted it time and time again on the 10th Circuit, and if given the chance I have no doubt he would do it again on the Supreme Court. He expresses a lot of empathy and sympathy for the less powerful, but when it comes time to rule, when the chips are down, far too often he sides with the powerful few over everyday Americans just trying to get a fair shake," Schumer added.
    First, Schumer knows better than to make a speech like this. He's a longtime member of the Senate Judiciary Committee, which, among other things, has review power over all nominations for lifetime judicial appointments, like those to the Supreme Court.
    Judges are not supposed to base their decisions on who the parties are, or whether the results feel right. An appellate judge cannot approach a case thinking "how can I help an 'everyday American' get a 'fair shake?'" Judges are supposed to decide the case on the law. Period.
    Deciding a case because of which party is more likeable is a form of tyranny itself. Justice is supposed to be blind. It's for politicians to champion the "everyday American."
    And Schumer knows it's misleading to cite statistics about how often Gorsuch sided with employers over employees. He knows an appellate judge like Gorsuch is even more limited in power than a trial judge: First, appellate judges do not even decide questions of fact -- answers to those questions are etched in stone at the trial level. An appellate judge only decides the law based upon the already-litigated facts. Second, judges don't get to pick their battles like executive and legislative branch officials. They only get to decide the cases that are delivered to them by the appellate process.
    All those statistics about Gorsuch deciding cases against employees? They don't take into account the cases that settled on favorable terms to employees, or where the employee prevailed at trial and the employer didn't appeal -- cases which never reached Gorsuch and might have been strong cases for the employee over the employer.
    Schumer's approach is a blueprint for injustice: It suggests that a judge should approach a new case thinking, "Gee, I'm at 49% siding with employees -- I think I'll decide this one against the employer to even out my average to 50-50." A judge like that would be unfit for the bench, and even Schumer would surely vote against him.
    There's a more accurate way of determining a judge's judicial philosophy than simple number-crunching: Read the judge's judicial opinions. Schumer knows this too; it just doesn't serve his objective of being a vocal critic of President Trump's appointment.
    Here are five reasons why Schumer is way off about Gorsuch:

    1) He's incredibly qualified.

    Gorsuch is made for the Supreme Court. He is a brilliant academic and jurist. His gleaming resume says it all: Columbia, Harvard Law School, Marshall Scholar at Oxford, clerk for a judge on the Court of Appeals for the District of Columbia Circuit, then clerk for Supreme Court Justices Byron White and Anthony Kennedy. From there he was a deputy associate attorney general in the DOJ, until he was appointed in 2006 to the 10th Circuit Court of Appeals. It's the classic path to the Supreme Court. He's as qualified as they come.

    2) If you're looking for someone to rein in Trump, Gorsuch might be your pick.

    Wait, what? How is this possible? Could Trump appoint someone that could someday be adverse to ... Trump? Yes. It's true. Unlike Justice Antonin Scalia, Gorsuch believes in strictly construing limits on federal and presidential authority. He believes executive bureaucracies have encroached upon judicial and legislative power, and has suggested that perhaps the "time has come to face the behemoth." And he's a critic of the Chevron doctrine, which requires judges to defer to agency interpretations of statutes. A Trump agency head would not tell a Justice Gorsuch how to interpret federal law -- rather, the courts interpret the law for the agencies.
    If Trump's executive orders exceed his executive power and violate federal law or the constitution, Gorsuch would be likely to rule against executive overreach. Which brings us to the next point.

    3) He's not that different from Scalia.

    Remember, when it comes to evaluating the net effect of a Supreme Court appointment, it's not just about Gorsuch, but whom he replaces. If he were replacing Ruth Bader Ginsburg or Sonia Sotomayor, then there would be a serious shift in judicial philosophy on the Court. But a recent New York Times analysis placed Gorsuch to the left of Clarence Thomas and just to the right of Scalia.
    Gorsuch's appointment really returns the court to the "status quo ante" -- roughly the position it was in before Scalia's death -- with one major difference: Scalia's successor does not share Scalia's expansive view of federal and executive power.

    4) He's a defender of all religious liberty.

    As constitutional scholar and president of the National Constitution Center Jeffrey Rosen observes, the theme of religious liberty runs through Gorsuch's opinions, including ones where he has sided with less sympathetic defendants, like prisoners. One Muslim prisoner claimed the Department of Corrections denied him a halal meal, "thus effectively forcing him to choose between remaining pious or starving." Gorsuch authored a concurring opinion in which the 10th Circuit allowed some of a prisoner's claims to proceed under RLUIPA, a law that prevents arbitrary or unnecessary restrictions on religious practice in an institution.
    Rosen predicts that Gorsuch would be quick to strike down an order explicitly discriminating against the individual free exercise of religion by Muslims.

    5) His opinions are not decided by politics.

    Gorsuch is a "textualist," which means he considers only the language of the law being reviewed, and not whether the consequences are desirable or appealing.
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    As he said at Trump's nomination announcement: "It is the role of judges to apply, not alter, the work of the people's representatives. ... A judge who likes every outcome he reaches is very likely a bad judge."
    Gorsuch's entire judicial philosophy centers around his belief that politics should not influence judicial decisions; that sometimes deciding a case impartially, based on the law, leads to results that the judge may personally dislike.
    Sure, Gorsuch is probably socially conservative, but if anyone can leave his personal beliefs at the courthouse steps, he's the judge who can do it.