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One of the penalties for refusing to participate in politics is that you end up being governed by your inferiors. -- Plato (429-347 BC)

Monday, April 03, 2017

Judge Gorsuch: ‘Everyone Who Comes To Court Deserves Respect’

Judge Gorsch: As Judges, ‘Sometimes The Answers We Reach Aren’t Ones We Would Personally Prefer. Sometimes The Answers Follow Us Home And Keep Us Up At Night. But The Answers We Reach Are Always The Ones We Believe The Law Requires.’

NOAH FELDMAN, Liberal Harvard Law Professor, & Former Clerk To Justice David Souter: “I’m not sure who decided that the Democratic critique of U.S. Supreme Court nominee Judge Neil Gorsuch would be that he doesn’t side with the little guy. It’s a truly terrible idea. … The rule of law isn’t liberal or conservative -- and it shouldn’t be.” (Noah Feldman, Op-Ed, “Democrats' Misguided Argument Against Gorsuch,” Bloomberg, 3/15/17)

JUDGE GORSUCH: “I also had the great fortune to clerk for Justice Kennedy.  He showed me that judges can disagree without being disagreeable.  That everyone who comes to court deserves respect.  And that a legal case isn’t just some number or a name but a life story.” (U.S. Senate, Judiciary Committee, Hearing, 3/20/17)
·         JUDGE GORSUCH: “As a judge now for more than a decade, I have watched my colleagues spend long days worrying over cases.  Sometimes the answers we reach aren’t ones we would personally prefer.  Sometimes the answers follow us home and keep us up at night.  But the answers we reach are always the ones we believe the law requires.” (U.S. Senate, Judiciary Committee, Hearing, 3/20/17)

FLASHBACK: Sen. Chuck Schumer (D-NY) Praised Judge Sonia Sotomayor For Hewing ‘Carefully To The Text Of Statutes, Even When Doing So Results In Rulings That Go Against So-Called Sympathetic Litigants’

SEN. CHUCK SCHUMER (D-NY): “…Judge Sotomayor puts rule of law above everything else… Sotomayor has hewed carefully to the text of statutes, even when doing so results in rulings that go against so-called sympathetic litigants.” (U.S. Senate, Judiciary Committee, Confirmation Hearing For Sonia Sotomayor, P.25, 7/13-16/2009)
·         SCHUMER: “…her record shows that she is in the mainstream. ...she has ruled for the government in 83 percent of immigration cases against the immigration plaintiff, she has ruled for the government in 92 percent of criminal cases, she has denied race claims in 83 percent of cases. ... In a case brought by plaintiffs who claimed they had been bumped from a plane because of race, she dismissed their case because the law required it, Judge Sotomayor has hewed carefully to the text of statutes, even when doing so results in rulings that go against so-called sympathetic litigants. In dissenting from an award of damages to injured plaintiffs in a maritime accident, she wrote, ‘we start with the assumption that it is for Congress, not the federal courts, to articulate the appropriate standards to be applied as a matter of federal law.’” (U.S. Senate, Judiciary Committee, Confirmation Hearing For Sonia Sotomayor, P.25, 7/13-16/2009)

JUDGE GORSUCH: ‘If Anyone Is Suggesting That I Like A Result Where An Autistic Child Happens To Lose, That’s A Heartbreaking Accusation To Me. … The Fact Of The Matter Is I Was Bound By Circuit Precedent’

NOAH FELDMAN: “The opinion Gorsuch wrote in 2008 wasn’t reviewed by the Supreme Court. The case handed down by the justices Wednesday… was another 10th Circuit case raising pretty much the same issue.” (Noah Feldman, “The Supreme Court Didn't Really Smack Down Gorsuch,” Bloomberg, 3/23/17)
·         “The key point is that the [Supreme C]ourt’s judgment repudiated the 10th Circuit. And it thereby repudiated the 2008 Gorsuch opinion applying the circuit’s precedent. But the court didn’t repudiate Gorsuch, not by a long shot. His decision was correct as a matter of 10th Circuit law. That law was wrong. Bur Gorsuch didn’t make it. He applied it -- which is what his job was.” (Noah Feldman, “The Supreme Court Didn't Really Smack Down Gorsuch,” Bloomberg, 3/23/17)

JUDGE DEANELL TACHA, 10th Circuit (Retired), Who Wrote The Urban Precedent: “…in particular, in the Luke P. case, Judge Gorsuch was following very longstanding precedent … [T]his committee… had heard Judge Gorsuch repeatedly say precedent is important, precedent stands. It is an important piece how -- of the lens that I referred to that a judge looks at a case through, and to be absolutely specific. Judge Gorsuch was applying precedent that went all the way back to 1982 in the Supreme Court decision of Board of Education v. Rowley. So, with all my heartstrings with the family, what Judge Gorsuch was called on to do was apply that very longstanding precedent for our circuit. … Further, I can say with some authority that he was following not as dicta, but as a holding in his case, WHAT I WROTE in the Urban case, which he was following, and I -- both all wrote, that the statute as interpreted must be more than de minimis.” (Emphasis Added; U.S. Senate Judiciary Committee Hearing, 3/23/2017)

JUDGE NEIL GORSUCH: “Senator, I really appreciate the opportunity to respond to that. ... Let’s start with the Luke P case and work forward from there. Luke P was a unanimous decision by my court. It included on the panel of three judges an appointee who happened to be appointed by a Democrat president. There was no dispute, in my court, about the applicable law. And there wasn’t because we were bound by circuit precedent. A case called Urban vs. Jefferson County, 1996, that said that the appropriate standard was de minimis—the educational standard had to be more than de minimis. That’s the law of my circuit, Senator. And I’ve been asked an awful lot about whether I abide precedent and whether I always like the results I reach. Here’s a case for you. … If anyone is suggesting that I like a result where an autistic child happens to lose, that’s a heartbreaking accusation to me. Heartbreaking. But the fact of the matter is I was bound by circuit precedent, and so was the panel of my court. And I had been bound for about 10 years by the standard in Urban vs. Jefferson County. Now, Senator, there are other cases, where, again, unanimously, my court had ruled for children with disabilities under this law. School of Deaf and Blind. Another Jefferson County case. Are examples I joined, participated, or wrote in IDEA cases where I wrote for the family under our binding standard. I understand that today the Supreme Court has indicated that the Urban standard is incorrect. That’s fine. I will follow the law. Now, sometimes--I think it was Justice Jackson who said just because I made a mistake unknowingly yesterday doesn’t mean I should make a mistake knowingly today. I’d invoke him here. I was wrong, Senator. I was wrong because I was bound by circuit precedent, and I’m sorry. But I tried to apply the law and I can tell you that we were doing it unanimously in all those cases.” (U.S. Senate Judiciary Committee Hearing, 3/22/2017)

The unanimous 10th Circuit panel in Thompson R2-J School District v. Luke P. was made up of Judges Biscoe, Gorsuch (Circuit Judges) and Parker (Senior District Judge). (Thompson R2-J School District v. Luke P. ex rel. Jeff P., 540 F.3d 1143 (10th Cir. 2008))
·         “Judge Mary Beck Briscoe was nominated by William J. Clinton on March 14, 1995.” (“Judge Mary Beck Briscoe, 10th Circuit, accessed 3/22/2017)

The unanimous 10th Circuit panel relied on a 12 year old 10th Circuit precedent, written by Judge Tacha: “…we have concluded that the educational benefit mandated by IDEA must merely be ‘more than de minimis.’ Urban ex rel. Urban v. Jefferson County Sch. Dist. R-1, 89 F.3d 720, 727 (10th Cir.1996).” (Thompson R2-J School District v. Luke P. ex rel. Jeff P., 540 F.3d 1143 (10th Cir. 2008))

JUDGE GORSUCH: ‘My Heart Goes Out To Him [Alphonse Maddin]… I Said That In The Opinion That He Was Put In A Rotten Position’

JUDGE NEIL GORSUCH: “…my heart goes out to him [Alphonse Maddin]… I said that in the opinion that he was put in a rotten position. And I go home at night with cases where sometimes the law requires results that I personally would not prefer.” (U.S. Senate, Judiciary Committee, Hearing, 3/21/17)
·         GORSUCH: “I’ve been stuck on the highway in Wyoming in a snowstorm. I know it’s involved. I don't make light of it, I take it seriously. But, Senator, this gets back to what my job is, and what it isn’t.” (U.S. Senate, Judiciary Committee, Hearing, 3/21/17)

MADDIN CASE: ‘Judge Neil Gorsuch Wasn’t Saying Truck Driver Alphonse Maddin Was Wrong To Abandon His Trailer’

“Judge Neil Gorsuch wasn’t saying truck driver Alphonse Maddin was wrong to abandon his trailer on the side of the road after waiting several hours in subzero temperatures for a repair truck. Gorsuch just wasn’t willing to say Maddin’s employer, TransAm Trucking Inc., broke the law by firing him.” (“Gorsuch Freezing-Trucker Case Boosts Business Hopes At Top Court,” Bloomberg, 2/1/17)
·         JUDGE GORSUCH: “It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that.  Our only task is to decide whether the decision was an illegal one.” (TransAm Trucking, Inc. v. Administrative Review Board, DoL, Pg. 19, (2016)

Tags: IJudge Gorsuch, everyone, who comes to court, deserves respect To share or post to your site, click on "Post Link". Please mention / link to the ARRA News Service and "Like" Facebook Page - Thanks!

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