Update: As you may have heard, the Senate confirmed Judge Neil Gorsuch to the U.S. Supreme Court. Read below for my thoughts on the confirmation process and Justice Gorsuch and antitrust.
We have entered a Supreme-Court-Justice-Nomination season. These are always interesting times for lawyers, politicians, and real people.
There are only nine Justices on the Supreme Court, so whenever there is an opening, it is a big deal. Appointments are for life, or until a Justice wants to leave, for whatever reason (or impeachment, but we haven’t had to worry about that lately). So the nomination seasons are whenever they are.
For lawyers, it is the rare time when the rest of the country cares about what they care about. Thus, news talk shows and articles are full of attorney quotes, ideas, and predictions about, first, who they think the nominee will be; and second, after the name is known, whether that person is qualified.
A Supreme Court Justice, as a job, is not an easy one. Sure, it comes with some perks like lifetime appointment, cool robes, and the right to interrupt attorneys whenever you want. But it is a lot of pressure because you are making decisions in a wide variety of legal subjects, covering constitutional, statutory, and even federal common law, each of which may create upheavals for huge groups of people.
As a Justice, you can’t afford the time to become and stay an expert in every area of law, but you (and your Justice colleagues) are making decisions that set the parameters for all legal fields, even over experts in those fields. Some may say that this is a feature not a bug. But, from the perspective of the individual Justice, it creates an enormous responsibility to think through everything you do. You can’t just take an opinion off.
Because of the impact and responsibility of a Supreme Court Justice, this isn’t a job for anyone. You have to love the law and want to contribute positively to it—in a way that might even seem a little obsessive.
So let’s talk about qualifications: At least since I’ve been following it, it is unusual to see a nominee for the US Supreme Court that isn’t qualified to work on the Court. That is, the qualifications of the men and women that Presidents of both parties have nominated over the last couple of decades have been impressive and adequate for the extremely high standards of the Court. That includes DC Circuit Judge Merrick Garland.
But, unfortunately, the word “qualifications” has become a word that every side, at one time or another, has lifted to mean “I think will do what I want on the rare controversial case that could likely go either way on the law,” or some other interest-focused meaning.
That is because most people, especially people on television, don’t like to just say, honestly, that they support or oppose a particular nominee for pure reasons of self or philosophical interest. Instead, they filter out their own biases by using the word “qualified” or “not-qualified,” or “extremist” or some other mismatched word. The reasons for this probably range from cognitive dissonance to political marketing.
President Donald Trump Nominates Judge Neil Gorsuch to the US Supreme Court
Thanks for sticking around through that long-winded introduction. I added the context I wanted to add, so I can now speak (well, write) more transparently.
Judge Gorsuch is a federal appellate judge on the Tenth Circuit Court of Appeals (which hears appeals from district courts in Colorado, Kansas, Oklahoma, New Mexico, Utah, and Wyoming). He has a BA from Columbia, graduated from Harvard Law in 1991 (exactly one decade before I did), and has a Doctor of Philosophy Degree in Law from Oxford. He clerked on the DC Circuit with Judge David B. Sentelle, then clerked on the United States Supreme Court with both Justices Byron White and Anthony Kennedy. He later worked with the Department of Justice and for many years at a strong law firm.
Since he’s been on the 10th Circuit, he has developed a reputation as a great writer (which was also true of Justice Scalia).
Is he qualified? Yes, without question. No matter what anyone says, that—as is usually the case—is not a real issue for this Supreme-Court-Justice-Nomination season.
Instead of debating whether he is qualified—he is—I will instead describe to you, based upon my own self-interest as an antitrust attorney—whether I would look forward to him joining the US Supreme Court.
First, Judge Gorsuch is an excellent writer. His opinions often start with an introduction that invites the reader to continue—in a novel-like fashion—and places the dispute in a big-picture frame that makes the rest of the opinion easier to understand. I recommend that you read Ross Guberman’s article about Judge Gorsuch’s writing talents. (As an aside, several years ago, I took a writing course by Ross Guberman and found it to be quite valuable.)
One way that you can tell the difference between a young inexperienced lawyer and a more confident attorney that knows the subject matter well is that the less-experienced lawyer will begin a brief with the drudgery of the basic facts and the law, without context, humor, or—and this is what matters—big-picture understanding. Instead, he or she follows a template and just inserts facts and law. These sort of briefs are not very persuasive, though they will suffice if the judge is willing to do the work.
By contrast, a more experienced attorney with a better grasp of the subject will begin a brief with a real introduction, which frames the rest of the argument and adds a big-picture element to the question before the judge. This is much more effective and, frankly, more interesting to read.
So—if you follow my inference—the fact that Judge Gorsuch possesses both the ability and desire to write in a way that places the overall dispute in a larger context is a good sign that he puts in the effort to understand what matters. That is not to say that other judges don’t, but it is evidence that he does.
And, since this part of the blog post is self-serving, as an attorney that reads lots of Supreme Court opinions, it makes my life more pleasant when the writing is strong.
Second, there is some evidence from one or more prior opinions that Judge Gorsuch is skeptical of the great amount of deference that the Chevron doctrine, as currently applied, offers to government agencies. As someone that thinks that government-agency power is too great as it is, I would like to see Chevron weakened. But, again, that is pure philosophical self-interest.
Finally, and most importantly to antitrust lawyers like myself, Judge Gorsuch has a lot of experience with antitrust cases. Perhaps he will be more likely to vote for cert for antitrust cases, which makes for an interesting time in the antitrust world—and helps to clarify open antitrust doctrines. That is important for antitrust itself because it effectively develops like the common law, so we need the Supreme Court to weigh in periodically to keep things on track. Otherwise, lower courts are sometimes following outdated Supreme Court precedents, even though economics and other foundations of antitrust have evolved.
In addition, antitrust has a large learning curve. It takes some exposure and experience to get a good sense of how it works. Judge Gorsuch is already far enough along this learning curve that he should be able to jump into any antitrust case at a relatively high level. Better decisions and guidance should result.
In private practice, Gorsuch litigated the Conwood case, which ended up in the Sixth Circuit. I know that case well because it was important to one of my prior cases, representing Church & Dwight, when I was with DLA Piper. What I remember from Conwood is that it addressed the antitrust implications of category management and was a great example of an antitrust violation in which one competitor harmed another in a very physical way—like the old story of burning down your competitor’s factory. I won’t go into a summary in this blog post, but you can read the decision here.
Significantly—at least to me—on the Tenth Circuit, Judge Gorsuch wrote the opinion in Kay Electric Cooperative v. City of Newkirk, which involved state-action immunity, an issue of particular interest. In that case, which preceded and was quoted by the US Supreme Court in Phoebe Putney, the Tenth Circuit concluded that Oklahoma did not clearly articulate a state policy to authorize the City of Newkirk’s anticompetitive conduct. Thus, the City failed the first prong of the Midcal test and did not qualify for state-action immunity. It is a well-reasoned and finely written opinion.
Judge Gorsuch also wrote the Tenth Circuit opinion in another notable monopolization case called Novell Inc. v. Microsoft Corp. You can read that opinion here.
My conclusion is that the Senate should confirm Judge Gorsuch because he is a great writer and knows antitrust law. And he is qualified.
Update: Alden Abbott from Truth on the Market has an outstanding article titled “Judge Gorsuch’s Distinguished Antitrust Record.” I recommend that you read it. Overall, Truth on the Market does great work, so you might check it out.