Fellow Democrats, Stop Misrepresenting Judge Gorsuch's Record

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As a proud Democrat—and the son of proud Democrats—I understand the fraught political environment in which Judge Gorsuch’s nomination is being considered. People of good faith across the political spectrum care deeply about the composition of the Supreme Court. Some people, of course, believe a different president should have filled this Supreme Court vacancy; some wish a different president now could. And I respect, admire, and have supported some of the Senators who now oppose Judge Gorsuch’s nomination.

But whatever one’s politics, whomever one voted for in the last election or will in the next, Judge Gorsuch unquestionably has the character and qualities, judgment and intellect to serve on the Supreme Court, and to do so honorably and independently.

I have known Neil Gorsuch for three decades. We first became friends as freshmen in college at Columbia. Neil is a brilliant man, of course; everyone knows that. But he is much more than that. Neil is, and always has been, a man of profound character and kindness, decency and honesty, humility and integrity.

A Senate that evaluates nominees based on their character and integrity and intelligence confirms Judge Gorsuch, just as it confirmed Justice Scalia 98-0 in 1986 and Justice Ginsburg 96-3 in 1993.

But those who oppose this nomination now contend that Judge Gorsuch’s judicial philosophy is not “mainstream,” and that he places corporate interests over the “little guy.” This caricature cannot be reconciled with the man I have known for more than thirty years. Nor can it be squared with his actual record on the bench.

While serving on the Tenth Circuit Court of Appeals for more than a decade, Judge Gorsuch was renowned for forging consensus on a circuit that currently has seven Democratic-nominated judges and five Republican-nominated judges. That’s why two former Chief Judges of the Tenth Circuit—one nominated by a Republican, the other by a Democrat—came to Washington to urge the Senate to confirm Judge Gorsuch.

In fact, Judge Gorsuch decided with the majority virtually every single time, in case after case, year after year—ruling with judges nominated by Presidents of both parties. A judge outside the mainstream would not have voted with the majority in 99% of the more than 2,700 cases in which he participated. But that is Judge Gorsuch’sactual record. And, in his decade on the bench, nearly every case in which Judge Gorsuch participated was decided unanimously.

Even when he disagrees with his colleagues, in that 1% of cases in which he dissented, Judge Gorsuch was just about as likely to be disagreeing with a judge nominated by a Republican president as a judge nominated by a Democratic president.

Similarly, the suggestion that Neil Gorsuch always favors corporate interests over individuals is simply not correct. Just as he sided with corporations in some cases, he sided with the “little guy” in others.

One “little guy” with whom Judge Gorsuch sided was Don Johnson, a seventy-nine year old retiree who worked in the coal mines for some 44 years. Mr. Johnson reported suffering the terrible symptoms of black lung disease, which can arise from prolonged exposure to coal dust. The coal company claimed that his disability resulted from smoking, not his days in the mines.

Judge Gorsuch wrote the opinion inEnergy West Mining Company v. Johnson affirming the decision ordering the company to compensate Mr. Johnson. The law was on Mr. Johnson’s side, so Judge Gorsuch was on his side too.

In Avila v. Jostens Inc., he sided with Marcial Avila, an immigrant from Mexico, who spoke Spanish and had only a limited understanding of English, in his suit against his employer after a supervisor told him that that “if you don’t speak English, go back to Mexico,” and fired him. After the lower court ruled for the employer, Judge Gorsuch sided with Mr. Avila, voting to allow Mr. Avila’s discrimination claim to proceed.

And, in Chapman v. Carmike Cinemas, Judge Gorsuch sided with Shannon Chapman against her employer when one of her supervisors sexually assaulted her. The lower court had held that her employer could not be held responsible for creating a hostile work environment; Judge Gorsuch voted to reverse that decision, allowing her case to proceed.

The fact is, Judge Gorsuch does not always side with “big corporations”; nor does he always side with the “little guy.” The cartoon version of Judge Gorsuch that some have put forth bears no resemblance either to the man I have known for many years or his actual record on the bench.

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