Understanding Blue Slips: What Are They and Why Do They Matter?

On March 21, 2017, President Trump made his first lower court nomination: Judge Amul R. Thapar for a seat on the Sixth Circuit Court of Appeals.[1]  With over 136 current and future vacancies on the federal bench,[2] more nominees will likely follow.  With a Republican majority in the Senate, the elimination of the filibuster on lower court nominations, and conservative groups howling for blood, there is little incentive for Trump to choose moderates for the bench. However, one Senate practice may work to constrain Trump’s more conservative nominees and encourage him to work with Democrats: the blue slip.

The History of the Blue Slip (From Cumberland to Biden)

Derived from the traditions of senatorial courtesy, the blue slip is named after the traditional blue paper it is printed on.  When a nominee is submitted to the Senate Judiciary Committee, “blue slips” are sent to the Senators representing the nominee’s home state.  The Senators then return the blue slip, indicating either approval or disapproval of the nominee.  If a home state Senator expresses opposition to a nominee, or refuses to return a blue slip, the Committee does not move the nomination to the floor.

The blue slip practice has a long history, going back at least one hundred years.[3]  The first example of a Senator using a blue slip to oppose a nominee dates back to the Wilson Presidency, when Senator Thomas Hardwick (D-GA) objected to the nomination of U. V. Whipple.[4]  Whipple’s nomination was subsequently rejected by the full Senate.

While the practice of using blue slips dates back a century, there is no consistent practice as to the effect of a negative blue slip on a nominee.  For approximately the first forty years of blue slip practice, a negative blue slip did not stop all action on a nominee.[5]  However, in 1956, Chairman James Eastland (D-MS) modified committee policy, indicating that a negative blue slip (or failure to return one) would act as a veto on committee consideration of a nominee.[6]In 1979, the rule changed again under new Chairman Edward Kennedy (D-MA), who stated that, in the absence of positive blue slips, he would have the committee vote on whether to proceed on consideration of the nominee.[7]  In 1980, the Committee held a hearing on the nomination of James Sheffield despite a negative blue-slip from home state Senator James Byrd (I-VA).[8]

In 1981, with President Ronald Reagan in office with a new Republican Senate, incoming Chairman Strom Thurmond (R-SC) announced that he would continue Kennedy’s blue slip policy, and would not necessarily view negative blue slips as reasons not to proceed on a nomination.[9]  In 1983, Thurmond processed (and the Senate later confirmed) John Vukasin to a seat on the Northern District of California, over the objection of Senator Alan Cranston (D-CA).[10]  In 1986, he held a hearing on the nomination of Albert Moon despite the objections of both his home state Senators, Daniel Inouye (D-HI) and Spark Matsunaga (D-HI).[11]

In 1987, Democrats retook the majority, and Joseph Biden (D-DE), the incoming Chairman, announced a new blue slip policy.  Under Biden’s policy, negative blue slips would only block committee consideration in cases where the White House failed to adequately consult with home state Senators before choosing the nominee.[12]  Under this new policy, the Committee processed (and the Senate confirmed) Vaughn Walker to a seat on the Northern District of California over the objection of Senator Cranston.[13]

The Blue Slip in the Clinton and Bush Presidencies

In 1994, the “Republican Revolution” swept a new majority into the U.S. Senate, and propelled Senator Orrin Hatch (R-UT) to the Chairmanship of the Judiciary Committee.  While Hatch indicated that he would continue to follow Biden’s modified blue slip policy, in application, his policy allowed Senators could veto judicial nominations from their home state.

Notably, Senator Jesse Helms (R-NC) blocked the nominations of three Clinton choices for North Carolina seats on the Fourth Circuit, Judges James Beaty, James Wynn and J. Rich Leonard.[14]  Similarly, Judge Helene White and Kathleen McCree Lewis, both nominated to Michigan seats on the Sixth Circuit were blue-slipped by Senator Spencer Abraham (R-MI), while Jorge Rangel and Enrique Moreno, nominated for Texas seats on the Fifth Circuit were blocked by Senator Phil Gramm (R-TX).[15]

In 2001, when President Bush came to office, Hatch announced a modification in his blue slip policy, indicating that he would move forward on nominees, even without blue slips, provided that the White House had consulted with the home state Senators over the vacancies.[16]

In 2003, Hatch moved the nomination of Carolyn Kuhl to the Ninth Circuit through Committee despite not receiving a blue slip from Senator Barbara Boxer (D-CA).[17]  Later that year, Hatch moved three Michigan nominees to the Sixth Circuit over the objections of Senators Debbie Stabenow (D-MI) and Carl Levin (D-MI).[18]  All four nominees, however, were blocked through filibusters by Senate Democrats.

In 2006, Democrats retook control of the U.S. Senate.  Incoming Judiciary Committee Chairman Patrick Leahy (D-VT) announced that he would only move on judicial nominees that had two blue slips returned.  As such, during the last two years of the Bush Presidency, a number of nominees were blue-slipped by Democratic Senators.  For example, Senators Jack Reed (D-RI) and Sheldon Whitehouse (D-RI) blocked consideration of Judge William Smith for a seat on the First Circuit.[19]  Similarly, Senator Mary Landrieu (D-LA) blocked the nomination of David Dugas to a judgeship on the Middle District of Louisiana.[20]

The pressure of blue slip approval forced the White House to start making “package deals” with Democratic Senators, offering them a chance to recommend nominees in exchange for their support for the White House’s picks.  In one notable instance, the Administration agreed to nominate previously blue-slipped Clinton nominee Helene White for the Sixth Circuit, in exchange for Michigan’s Democratic Senators supporting Raymond Kethledge, who had been nominated for a second seat.[21]  In another case, the White House agreed to withdraw the nomination of Judge Gene Pratter to a seat on the Third Circuit, instead nominating Judge Paul Diamond, who was deemed acceptable to Senator Bob Casey (D-PA).[22]

Blue Slips in the Obama Presidency

In 2009, with the Obama Administration making judicial nominations, Leahy reiterated his blue slip policy, indicating that he would not move any nominees without blue slips from both the home state senators.  This strict policy gave Republican Senators significant leverage over the Obama Administration in discussions over judicial nominations.  The first Senator to exercise the blue slip privileges was Senator David Vitter (R-LA), who blocked the nomination of Brian Anthony Jackson to a seat on the Middle District of Louisiana until the White House committed to keeping Bush-era U.S. Attorney Jim Letten on the job.[23]  Upon a White House commitment to keep Letten, Vitter returned his blue slips and allowed Jackson to be confirmed.

While Vitter used the blue slip process to secure support for an unrelated nomination, other Senators used it to protect their prerogative to choose nominees for the state.  Senators James Inhofe (R-OK) and Tom Coburn (R-OK) used the blue slip process to block confirmation on Arvo Mikkanen’s nomination to a seat on the Northern District of Oklahoma, claiming they were not consulted before the nomination was made.[24]  Similarly, Senators John Cornyn (R-TX) and Kay Bailey Hutchison (R-TX) refused to approve any nomination to Texas courts that was not vetted through their selection committee, cutting Democrats out of the process.[25]  Senators Ron Johnson (R-WI) and Dan Coats (R-IN) blocked the nominations of Victoria Nourse and Myra Selby respectively to seats on the Seventh Circuit Court of Appeals, arguing that the nomination should emerge from a bipartisan nominating committee.[26]

Other Senators used blue slips to block nominees based on substantive objections.  Senators Lindsay Graham (R-SC) and Tim Scott (R-SC) blocked Judge Alison Renee Lee’s nomination to serve on the U.S. District Court for South Carolina based on allegations that she was “soft-on-crime”.[27]  Senator Dean Heller (R-NV) blocked the nomination of Judge Elissa Cadish for the U.S. District Court in Nevada based on her pre-Heller opinion that the Second Amendment does not protect the right to bear arms for an individual.[28]

On rare occasions, the White House was able to successfully use leverage to force a blue-slipping Senator to give way.  Senator Robert Menendez (D-NJ), for example, was forced to withdraw his blockade of Judge Patty Shwartz for a seat on the Third Circuit under pressure from liberal groups.[29]  Similarly, pressure from civil rights groups pushed Sen. Marco Rubio (R-FL) to return a blue slip on Judge Brian Davis’ nomination to the Middle District of Florida.[30]

Not all Republican Senators exercised their blue-slip leverage s vigorously.  Some took a more hands-off approach, allowing the White House and their Democratic colleagues to take the lead on judicial nominees for their state.  Sen. John Boozman (R-AR), for example, supported the nominations of five Arkansas judges proposed by his colleague Sen. Mark Pryor (D-AR).[31]  Similarly, Senators Lamar Alexander (R-TN) and Bob Corker (R-TN) backed two circuit and six district court appointments by the Obama Administration.[32]  Additionally, they supported the Administration’s unsuccessful nomination of Edward Stanton to a seat on the U.S. District Court for the Western District of Tennessee.[33]  Senator Roy Blunt (R-MO) returned blue slips on every judicial nominee for his state, regardless of whether he supported the nominee on the merits.  Notably, he opposed the nomination of Judge Ronnie White to serve on the the Eastern District of Missouri, and Stephen R. Bough to serve on the Western District of Missouri, but nonetheless allowed the nominees to be considered by the committee, and eventually confirmed.[34]

Other Republican Senators used the leverage of blue slips to work out nomination deals with their Democratic colleagues.  Senators Bob Casey (D-PA) and Pat Toomey (R-PA) worked out a deal that would allow Toomey to put forward one district court judge for every three that Casey named.  Under this deal, Toomey was able to secure the confirmation of several Republican judges.[35]   Senators Dick Durbin (D-IL) and Mark Kirk (R-IL) had a similar deal, which allowed Kirk to name a number of Republicans to the Northern District of Illinois.[36]

In other states, the White House was forced to work out package deals with Republican Senators that would allow long-vacant judgeships to be filled.  By 2013, the overworked court in Arizona, had six out of its thirteen judgeships vacant due to an impasse between Senator John McCain (R-AZ) and the White House over the nomination of Rosemary Marquez.[37]  Marquez was eventually confirmed as part of a package deal with five other nominees, including McCain protege Diane Humetewa.[38]  Similarly, the White House was able to appoint David Hale, a Democrat, to the Western District of Kentucky only when paired with Greg Stivers, a Republican.[39] 

The Administration’s willingness to work with Republican Senators on nominations was tempered by pressure from its own base.  For example, in 2013, the White House and Senators Saxby Chambliss (R-GA) and Johnny Isakson (R-GA) announced a deal that would fill two seats on the Eleventh Circuit and four seats on the Northern District of Georgia.[40]  One of the nominees proposed by the Senators, Judge Michael Boggs, attracted fierce opposition from civil rights groups due to his anti-gay rights stances as a state legislator.[41]  Ultimately, the White House was forced to jettison Boggs, and leave the seat vacant.

At times, even pre-approving nominees with Republican Senators did not guarantee their future support.  Notably, Senator Pat Roberts (R-KS) initially expressed support for the nomination of Steve Six to the Tenth Circuit.  However, under pressure from conservative groups, he and Sen. Jerry Moran (R-KS) came out in opposition to Six shortly after his hearing, essentially killing his nomination.[42]  Similarly, Obama’s nomination to the Northern District of Georgia after Boggs, Judge Dax Erik Lopez, a Republican and a member of the conservative Federalist Society, was blocked by Sen. David Perdue (R-GA) after conservative groups objected to Lopez’s membership in Latino civic organizations.[43]  Sen. Rubio blocked two nominees to the Southern District of Florida, Judge William Thomas, and Mary Barzee Flores, after initially indicating his support to the White House.[44]

Ultimately, Leahy’s strict adherence to blue slips placed the Obama Administration in an impossible situation.  Republican Senators frequently rejected nominees proposed by the Administration while either failing to offer names of their own, or suggesting picks that were too conservative.  As negotiations over nominees fell apart, many states with Republican Senators saw vacancies linger unfilled for years.

Blue Slips in the Age of Trump

Shortly after the election of President Trump, Judiciary Committee Chairman Chuck Grassley (R-IA) announced that he would continue to honor the strict blue slip policy that Leahy set out.[45]  This theoretically gives Democrats the same leverage over judicial nominations that Republicans had in the Obama Administration.  In previous Republican administrations, Democratic Senators generally took a hands-off approach to judicial nominations, rejecting nominees only when they were viewed as too extreme.  However, after the increased use of blue slipping under the Obama Administration, it is possible that Democrats will be emboldened to demand pre-approval of judicial nominees.  As such, the Administration may have to rely on package deals in states with Democratic Senators, agreeing to nominate Democrats to some seats on the federal bench.

Additionally, Republican Senators are themselves pushing for the renomination of Obama nominees left unconfirmed at the end of the 114th Congress.  Senators Mike Crapo (R-ID) and Jim Risch (R-ID) have already asked Trump to renominate Judge David Nye, the unconfirmed Obama selection for a vacancy on the U.S. District Court in Idaho.[46]  Senator Toomey has asked Trump to renominate Judge Susan Paradise Baxter, a Democrat nominated by Obama for a seat on the Western District of Pennsylvania.[47]

With Republicans in the majority, and the filibuster for lower court nominations abolished, the blue slip is one of the only tools Democrats have to temper the ideology of Trump’s judicial nominations.  While Republicans used it to great effectiveness to prevent Obama from filling vacancies, it remains to be seen how aggressively Democrats will wield the blue slip.

[1] Press Release, The White House, President Donald J. Trump Announces Intent to Nominate Judge Amul R. Thapar for the U.S. Court of Appeals for the Sixth Circuit (Mar. 21, 2017) (on file with the White House).

[3] See Mitchel A. Sollenberger, The History of the Blue Slip in the Senate Committee on the Judiciary, 1917-Present, CRS Report for Congress (Oct. 22, 2003), http://congressionalresearch.com/RL32013/document.php.

[4] Id. 

[5] See id. (noting that the objections of Senator Theodore Bilbo did not stop the confirmation of Judge Edwin Holmes to the Fifth Circuit).

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10]See id.

[11] Id. (noting that Moon was never confirmed).

[12] Id.

[13] Id.

[14] See J. Rich Leonard, I Got the Merrick Garland Treatment: Appeals Court Nominee, USA Today, Apr. 6, 2016, http://www.usatoday.com/story/opinion/2016/04/07/former-nominee-modern-confirmation-process-judicial-nominees-senate-constitution-column/82446356/.

[15] Amy Steigerwalt, Battle Over the Bench: Senators, Interest Groups, and Lower Court Nominations 62 (University of Virginia Press 2010).

[16] See Sollenberger, supra n. 3.

[17] Id.

[18] Id.

[19] Cf. Zachary McCune, Federal Judge Appointment Stalled for Flanders ‘71, The Brown Daily Herald, Feb. 6, 2007, http://www.browndailyherald.com/2007/02/06/federal-judge-appointment-stalled-for-flanders-71/ (noting the Senators’ support for another candidate, Robert Flanders).

[20] Avery Davidson, Sen. Landrieu Admits to Blocking the Appointment of David Dugas, WAFB 9NEWS, Feb. 15, 2008, http://www.wafb.com/story/7881770/sen-landrieu-admits-to-blocking-the-appointment-of-david-dugas?clienttype=printable&redirected=true.

[21] Ken Thomas, Bush Nominates Michigan Appellate Judge to Sixth Circuit, Foxnews.com, Apr. 15, 2008, http://www.foxnews.com/printer_friendly_wires/2008Apr15/0,4675,JudicialNominees,00.html.  

[22] The Associated Press, Bush Backs Five For Bench in State, Pittsburgh Tribune, July 25, 2008, http://triblive.com/x/pittsburghtrib/news/regional/s_579380.html.

[23] Sen. David Vitter Holding Up Obama Nominations for Word on Jim Letten, The Times-Picayune, Jan. 10, 2010, http://www.nola.com/politics/index.ssf/2010/01/sen_david_vitter_holding_up_ob.html.

[24] Editorial Board, Mystery Surrounds Rejection of Mikkanen Judicial Nomination, The Oklahoman, Dec. 20, 2011, http://newsok.com/article/3633391.

[25] Gary Martin, Texas Democrats Rap Obama on Judicial Posts, MySA, July 2, 2011, http://www.mysanantonio.com/opinion/columnists/gary_martin/amp/Texas-Democrats-rap-Obama-on-judicial-posts-1449451.php.

[26] See Craig Gilbert, Ron Johnson ‘Filister’ of Nourse Nomination to Federal Bench Draws Fire, Milwaukee Journal Sentiel July 18, 2011, http://archive.jsonline.com/blogs/news/125741928.html; Marilyn Odendahl, Indiana’s Judicial Nominees Headed Toward Disappointment, The Indiana Lawyer, Dec. 28, 2016, http://www.theindianalawyer.com/indianas-judicial-nominees-headed-toward-disappointment/PARAMS/article/42372.

[27] Ali Watkins, S.C. Sen. Tim Scott Joins Opposition to Nomination of State Judge, McClatchy D.C. Bureau, July 17, 2014, http://www.mcclatchydc.com/news/politics-government/congress/article24770623.html.  

[28] Laura Myers and Steve Tetreault, Heller Stands Firm Against Nevada Judicial Nominee, Las Vegas Review Journal, Apr. 10, 2012, http://www.reviewjournal.com/news/government/heller-stands-firm-against-nevada-judicial-nominee.

[29] Humberto Sanchez, Menendez Bows to Political Pressure, Backs Obama’s Judicial Nominee, Roll Call, Jan 13, 2012, http://www.rollcall.com/news/menendez_bows_to_pressure_backs_obamas_judicial_nominee-211490-1.html.

[30] Alex Leary, Rubio Releases Hold on African-American Judicial Candidate But Continues to Block Another, The Tampa Bay Times, Sept. 19, 2013, http://www.tampabay.com/blogs/the-buzz-florida-politics/rubio-releases-hold-on-african-american-judicial-candidate-but-continues/2142787.

[31] See Press Release, Office of Sen. John Boozman, Senate Clears P.K. Holmes to Serve as U.S. District Judge for Western District (Feb. 7, 2011) (on file at www.boozman.senate.gov); Press Release, Office of Sen. John Boozman, Pryor, Boozman Announce Nomination of Susan Hickey for U.S. District Judge for the Western District of Arkansas (Apr. 6, 2011) (on file at www.boozman.senate.gov); Press Release, Office of Sen. John Boozman, Senate Confirms Kris Baker for U.S. District Judge for the Eastern District of Arkansas (May 7, 2012) (on file at www.boozman.senate.gov); Press Release, Office of Sen. John Boozman, Pryor, Boozman Applaud Confirmation of Judge Jay Moody as U.S. District Judge for the Eastern District of Arkansas (Feb. 25, 2014) (on file at www.boozman.senate.gov); Press Release, Office of Sen. John Boozman, Pryor, Boozman Congratulate Timothy Brooks on Confirmation as U.S. District Judge for the Western District of Arkansas (Mar. 5, 2014) (on file at www.boozman.senate.gov).

[32] See Tom Humphrey, Nashville Lawyer Stranch Confirmed for 6th Circuit Judgeship, Knoxville Blogs, Sept. 14, 2010, http://knoxblogs.com/humphreyhill/2010/09/14/nashville_lawyer_stranch_confi/; Tom Humphrey, Senate Confirms Memphis Judge for 6th Circuit Court of Appeals, Knoxville Blogs, Sept. 7, 2011, http://knoxblogs.com/humphreyhill/2011/09/07/_washington_-_us_senator/; Kevin Sharp ‘93 Confirmed to Seat on U.S. District Court for the Middle District of Tennessee, Vanderbilt Law School Blog, May 3, 2011, https://law.vanderbilt.edu/news/kevin-sharp-93-confirmed-to-seat-on-u-s-district-court-for-the-middle-district-of-tennessee/; Press Release, Office of Sen. Bob Corker, Alexander, Corker on Upcoming Senate Vote on Judge John Thomas Fowlkes Jr., of Memphis, to be U.S. District Judge for the Western District of Tennessee (Jun. 20, 2012) (on file at www.boozman.senate.gov); Georgiana Vines, Pamela Reeves, Federal Court Nominee, Draws Praise, Knoxville News Sentinel, May 18, 2013, http://archive.knoxnews.com/news/columnists/georgiana-vines/georgiana-vines-pamela-reeves-federal-court-nominee-draws-praise-ep-358247730-355838351.html; Tom Humphrey, Senate Confirms Appointment of University of Memphis Administrator as Federal Judge in West Tennessee, Knoxville Blogs, Apr. 30, 2014,http://knoxblogs.com/humphreyhill/2014/04/; Zack Petersen, Mayor Berke’s Former Chief-of-Staff Unanimously Confirmed as Federal Judge, Chattanooga Times Free Press, Dec. 7, 2015, http://www.timesfreepress.com/news/local/story/2015/dec/07/chattanoogas-travis-mcdonough-confirmed-federal-judge/339361/; Mary Troyan, Senate Confirms Waverly Crenshaw for Federal Judgeship, Tennessean, Apr. 11, 2016, http://www.tennessean.com/story/news/2016/04/11/senate-confirms-waverly-crenshaw-federal-judgeship/82898132/.     

[33] Michael Collins, Edward Stanton Unlikely to be Confirmed as Federal Judge, USAToday, Nov. 10, 2016, http://www.tennessean.com/story/news/politics/2016/11/10/edward-stanton-unlikely-confirmed-federal-judge/93598860/.

[34] See Chuck Raasch, Senate Confirms St. Louis’ Ronnie White as Federal Judge, St. Louis Post-Dispatch, Jul. 16, 2014, http://www.stltoday.com/news/local/govt-and-politics/senate-confirms-st-louis-ronnie-white-as-federal-judge/article_c758368a-534d-59e1-8ad6-5367e272c5e6.html; Steve Kraske, Senate Confirms Kansas City Lawyer Steve Bough for Federal Judgeship, Kansas City Star, Dec. 16, 2014, http://www.kansascity.com/news/local/news-columns-blogs/the-buzz/article4541083.html.

[35] Judge Matthew Brann for the Middle District of Pennsylvania; and Judges Jeffrey Schmehl, Edward Smith, and Jerry Pappert to the Eastern District of Pennsylvania.

[36] Judges John Tharp, Thomas Durkin, Manish Shah, and John Robert Blakey.

[37] Lee Fang, After Blocking a Judicial Nominee to the Arizona District Court, McCain Falsely Claims the Nomination Was Never Made, ThinkProgress, Sept. 1, 2011, https://thinkprogress.org/after-blocking-a-judicial-nominee-to-arizona-district-court-mccain-falsely-claims-the-nomination-was-ff2c0ee9280d.

[38] William Peacock, Esq., AZ’s 6 New Federal Judges Include 1st Female Native American Fed. Judge, FindLaw, May 16, 2014, http://blogs.findlaw.com/ninth_circuit/2014/05/arizs-6-new-judges-include-1st-female-native-american-fed-judge.html.

[39] Andrew Wolfson, 2 Judges Confirmed in Ky’s Western District, Louisville Courier-Journal, Dec. 4, 2014, http://www.courier-journal.com/story/news/local/2014/12/04/judges-confirmed-kys-western-district/19910589/.

[40] See Daniel Malloy, Obama Nominates Leslie Abrams – Stacey’s Sister – for Federal Judgeship, Atlanta Journal Constitution, Mar. 11, 2014, http://politics.blog.ajc.com/2014/03/11/obama-nominates-leslie-abrams-staceys-sister-for-federal-judgeship/.

[41] Jonathan Allen, Civil Rights Leaders to Hit Obama, Politico, Dec. 23, 2013, http://www.politico.com/story/2013/12/civil-rights-leaders-to-hit-obama-on-judges-101473.

[42] Editorial Board, Steve Six Deserved Better, The Wichita Eagle, July 29, 2011, http://www.kansas.com/opinion/editorials/article1078676.html.

[43] Greg Bluestein, David Perdue Blocks Latino Judicial Nominee, Atlanta Journal Constitution, Jan. 21, 2016, http://politics.blog.ajc.com/2016/01/20/david-perdue-wont-back-dax-lopezs-judicial-nomination/.

[44] See Lizette Alvarez, Rubio Withdraws Support for Gay Black Judge’s Nomination for Federal Bench, N.Y. Times, Sept. 23, 2013, http://www.nytimes.com/2013/09/24/us/politics/rubio-withdraws-support-for-gay-black-judges-nomination-to-the-federal-bench.html; Jay Weaver, Sen. Marco Rubio Blocks Confirmation of Judge He Recommended, Miami Herald, Jun 4, 2016, http://www.miamiherald.com/news/politics-government/article81786967.html.

[45] Joe Palazzolo, Donald Trump Looks to Put His Stamp on Federal Courts, Wall Street Journal, Nov. 11, 2016, https://www.wsj.com/articles/donald-trump-looks-to-put-his-stamp-on-federal-courts-1478892603.

[46] Betsy Russell, Sens. Crapo, Risch Standing By Nye Nomination; Trump Administration Also May Support It, Eye on Boise, Nov. 14, 2016, http://www.spokesman.com/blogs/boise/2016/nov/14/sen-crapo-risch-standing-nye-nomination-trump-administration-also-may-support-it/.

[47] Ed Palatella, Nomination Process Reset for Erie Federal Judgeship, GoErie.com, Feb. 28, 2017, http://www.goerie.com/news/20170228/nomination-process-reset-for-erie-federal-judgeship.

Judge Neil Gorsuch – Nominee to be Associate Justice of the Supreme Court: Part Seven – En Banc Decisions

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.

The Senate Judiciary Committee finished its questioning of Judge Neil Gorsuch yesterday with relatively no substantive discussion of his judicial views.  Even by the standards set by previous nominees, Gorsuch has been particularly reticent, refusing to express opinions about seminal cases including Brown v. Board of Education.[1]  As such, observers trying to determine the kind of justice Gorsuch would be are forced to rely on his conduct on the Tenth Circuit Court of Appeals.  Today, we will look at Gorsuch’s behavior in en banc cases (cases where the Tenth Circuit sits as a whole) to draw conclusions about his behavior on the Supreme Court.

Taking Cases En Banc

En banc review of a panel decision is a relatively rare procedure.  The Tenth Circuit only sits en banc in cases of “exceptional public importance or on a panel decision that conflicts with a decision of the United States Supreme Court or [the Tenth Circuit].”[2]  Because the Tenth Circuit publishes the list of judges who vote in favor of en banc rehearing of panel decisions, Gorsuch’s votes on rehearing are public.

For his part, Gorsuch has rarely voted in favor of en banc rehearing, even in cases where other Republican appointees have advocated for it.  For example, Gorsuch declined to join Judge Michael McConnell’s call for en banc rehearing of an opinion denying felons the defense of “innocent possession” in firearm possession cases.[3]

In a handful of cases, however, Gorsuch has voted in favor of en banc rehearing.[4]

American Atheists, Inc. v. Davenport – This case involved a challenge to 12-foot tall memorial crosses erected by the Utah highway patrol association alongside public roadways.  The Tenth Circuit panel, led by Judge David Ebel struck down the crosses as a public endorsement of Christianity.[5]  Four Republican appointees on the Tenth Circuit, including Gorsuch, voted to rehear the case.[6]  Gorsuch wrote a dissent from the denial of en banc rehearing, arguing that the court’s use of the “reasonable observer” test in evaluating public monuments is a mistake.[7]  He also joined the principal dissent by Judge Paul Kelly.[8]

Little Sisters of the Poor Home of the Aged v. Burwell – This case involved a Catholic charity who objected to the provision of contraceptive coverage to its employees under the Affordable Care Act.  They also objected to submitting paperwork under the Act that would exempt them from providing such coverage.  A panel of the Tenth Circuit voted to reject the charity’s claim under the Religious Freedom Restoration Act (RFRA).[9]  Gorsuch voted with all four other Republican appointees on the Tenth Circuit for en banc rehearing.[10]  He also joined Judge Harris Hartz’s principal dissent from denial of rehearing.[11]

Pauly v. White – This case involved a suit against a police officer who shot a suspect to death through the window of his home.  A panel of the Tenth Circuit ruled 2-1 that the officer was not entitled to “qualified immunity” for his actions.[12]  The full Tenth Circuit split 6-6 on whether to take the case en banc, with Gorsuch voting to rehear the case.[13]  Gorsuch also joined the principal dissent by Judge Nancy Moritz, as well as a separate dissent by Judge Hartz.[14]

Planned Parenthood Assoc. Of Utah v. Herbert – This case involved a challenge to the Utah Governor’s decision to cut off “pass-through” federal funds to Planned Parenthood.  After a trial judge declined to enjoin the Governor’s decision, a panel of the Tenth Circuit reversed.[15]  Along with three other Republican appointees, Gorsuch voted to rehear the case en banc, and wrote the primary dissent in the case, arguing that the panel applied the wrong standard in granting the preliminary injunction.[16]

En Banc Opinions

Looking at the small universe of en banc cases in which Gorsuch has participated, it is notable how many opinions Gorsuch has written.  There are only a couple of en banc cases in which Gorsuch has not written either the majority opinion, a concurrence, or a dissent.[17]  Gorsuch’s most notable opinions are summarized below:

Zamora v. Elite Logistics, Inc. –   This case involved a Title VII employment discrimination suit.[18]  The court deadlocked 7-to-7 on the issue of whether summary judgment to the employer was appropriate, with Gorsuch on the side of the employer.[19]  Additionally, Gorsuch filed a concurrence, discussing the anti-discrimination provisions in the Immigration Reform and Control Act of 1986 (IRCA).[20]

Wilson v. Workman – This case involved the question of how much deference should be offered to state court proceedings that don’t consider evidence that would entitle defendants to relief.  Judge McConnell, writing for a majority of seven judges, held that, where a state court fails to take into account non-record evidence that “would entitle the petitioner to habeas relief,” the court is not entitled to deference under the Anti-Terrorism and Effective Death Penalty Act (AEDPA).[21]  Gorsuch dissented, joined by four of his colleagues, arguing that AEDPA’s text contradicts McConnell’s reading.[22]

Hydro Resources, Inc. v. E.P.A. –  This case, previously discussed here, involved a challenge to an EPA rule requiring Indian tribes to obtain additional state permits to mine on their land.  Writing for a six judge majority, Gorsuch ruled that the tribes had satisfied the injury-in-fact requirement under Article III to bring suit.[23]  Five judges dissented from the ruling.[24]

The Wilderness Society v. Kane County – This case involved a challenge to a Utah county ordinance that allowed off-road vehicles onto federal land.  The en banc court, in an opinion written by Judge Paul Kelly and joined by five other judges, held that the environmental groups challenging the ordinance lacked standing to bring suit.[25]  Gorsuch, joined by Judges Mary Beck Briscoe and Terrence O’Brien, concurred in the judgment, arguing that there is no need to address standing in the case because the case is ultimately moot.[26]

Hobby Lobby Stores, Inc. v. Sebelius –  This case, previously discussed here, involved a challenge to the contraceptive mandate in the Affordable Care Act.  Gorsuch joined the plurality opinion, written by Chief Judge Timothy Tymkovich, holding that the plaintiffs had succeeded in their challenge to the mandate.[27]  He also concurred with the opinion, raising the issue of prudential standing.[28]

United States v. Rentz – This case, previously discussed here, involved the interpretation of a statute that criminalized the carrying of a firearm during a violent offense.  Writing for a six judge plurality, Gorsuch found that the act’s text prevented prosecutors from charging multiple counts for a single use or carry of a firearm.[29]  Four other judges joined a concurrence by Judge Scott Matheson,[30] which agreed with Gorsuch, while Judge Kelly dissented.[31]

Overall Assessment

Looking at Gorsuch’s en banc record, we conclude that he sits squarely in the mainstream of the conservative wing of the Tenth Circuit.  In every en banc decision he has made, Gorsuch has been joined by the majority of the Republican appointees on the court.  In contrast, most of the dissenters from Gorsuch’s decisions have been Democratic appointees.

Extrapolating from these cases, it is likely that Gorsuch will be a mainstream conservative on the Supreme Court.  His voting record would likely mirror that of Chief Justice John Roberts and Justice Samuel Alito, rather than that of Justice Anthony Kennedy.

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.

[1] See Alexander Bolton and Lydia Wheeler, Gorsuch Rewrites Playbook for Confirmation Hearings, TheHill, Mar. 22, 2017, http://thehill.com/homenews/news/325343-gorsuch-rewrites-playbook-for-confirmation-hearings.

[2] 10th Cir. R. 35.1(A).

[3] United States v. Baker, 523 F.3d 1141 (10th Cir. 2008) (McConnell, J.) (dissenting from denial of rehearing en banc).

[4] See, e.g., Pauly v. White, 817 F.3d 715, 716 (10th Cir. 2016) (noting that Judge Gorsuch voted to rehear case en banc, along with five other judges); Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Burwell, 799 F.3d 1315 (10th Cir. 2015) (noting that Judge Gorsuch joined four other judges in voting to rehear the case en banc).

[5] See American Atheists, Inc. v. Davenport, 616 F.3d 1145 (10th Cir. 2010).

[6] See American Atheists, Inc. v. Davenport, 637 F.3d 1095, 1101 (10th Cir. 2010) (noting that Judges Gorsuch, Kelly, Tymkovich, and O’Brien voted to grant en banc rehearing).

[7] See id. at 1108.

[8] Id. at 1101.

[9] Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Burwell, 794 F.3d 1151 (10th Cir. 2015)

[10] Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Burwell, 799 F.3d 1315 (10th Cir. 2015).

[11] See id. 

[12] See Pauly v. White, 814 F.3d 1060 (10th Cir. 2016).

[13] Pauly v. White, 817 F.3d 715, 716 (10th Cir. 2016) (noting that Judges Kelly, Hartz, Tymkovich, Gorsuch, Holmes, and Moritz voted to rehear the case).

[14] See id.

[15] Planned Parenthood Ass’n of Utah v. Herbert, 828 F.3d 1245, 1248 (10th Cir. 2016).

[16] Planned Parenthood Ass’n of Utah v. Herbert, 839 F.3d 1301, (Mem)–1302 (10th Cir. 2016).

[17] See, e.g., Contreras-Bocanegra v. Holder, 678 F.3d 811, 819 (10th Cir. 2012) (Lucero, J.) (writing for a unanimous court in reversing the Board of Immigration Appeals); United States v. Sturm, 672 F.3d 891, 892 (10th Cir. 2012) (Murphy, J.) (writing for a ten judge majority, including Gorsuch, in affirming a child pornograph conviction).

[18] United States v. Braden, 458 F. App’x 751, 753 (10th Cir. 2012).

[19] Zamora v. Elite Logistics, Inc., 478 F.3d 1160 (10th Cir. 2007).

[20] See id. at 1183 (Gorsuch, J., concurring).

[21]Wilson v. Workman, 577 F.3d 1284, 1287 (10th Cir. 2009).

[22] Id. at 1315 (Gorsuch, J., concurring).

[23] Hydro Res., Inc. v. U.S. E.P.A., 608 F.3d 1131, 1134 (10th Cir. 2010).

[24] See id. at 1131 (noting that Judges Ebel, Briscoe, Henry, Lucero, and Murphy dissented).

[25] The Wilderness Soc. v. Kane Cty., Utah, 632 F.3d 1162, 1165 (10th Cir. 2011).

[26] Id. at 1174 (Gorsuch, J., concurring in the judgment).

[27] Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1152 (10th Cir. 2013), aff’d sub nom. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 189 L. Ed. 2d 675 (2014).

[28] See id. at 1151 (Gorsuch, J., concurring).

[29] United States v. Rentz, 777 F.3d 1105, 1115 (10th Cir. 2015).

[30] Id. at 1116 (Matheson, J., concurring).

[31] Id. at 1130 (Kelly, J., dissenting).

Judge Neil Gorsuch – Nominee to be Associate Justice of the Supreme Court: Part Six – Criminal Procedure

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.

Much of the question of Judge Neil Gorsuch on the second day of his confirmation hearing focused on his views on separation of powers, civil rights, and constitutional interpretation.  Comparatively little time was spent on Gorsuch’s views on criminal cases.  While we have previously explored Gorsuch’s jurisprudence on the Fourth Amendment, we will now turn to his record on the Fifth and Sixth Amendments.

Fifth Amendment – Prohibition Against Double-Jeopardy

The Double Jeopardy Clause of the Fifth Amendment bars the government from trying an individual twice for the same crime.  Practically, this means that a defendant who has been acquitted of an offense cannot be retried of the same offense.[1]  It also prevents the government from retrying a case that has been dismissed by a judge for lack of evidence.[2]  However, it does not prohibit the government from retrying a defendant where a conviction has been reversed because of a trial error unrelated to guilt or innocence.[3]

For his part, Gorsuch has shown a willingness to strictly enforce the Double Jeopardy Clause.  For example, in one case, Gorsuch overturned the conviction of a man for first degree murder and second degree murder, where the convictions were drawn from the death of the same victim.[4]  In another case, Gorsuch affirmed the dismissal of cumulative federal law punishments under the Assimilative Crime Act.[5] 

Nevertheless, Gorsuch has rejected Double Jeopardy claims in a few cases.  In one case, Gorsuch found that retrying a defendant whose initial conviction had been reversed for ineffective assistance of counsel was not barred by Double Jeopardy.[6]  In another case, he found that trying a defendant for conspiracy in addition to the underlying offense did not violate Double Jeopardy.[7]

Fifth Amendment – Right Against Self-Incrimination

The Fifth Amendment protects individuals from being forced in incriminate themselves in criminal cases.  This principle was applied by the Supreme Court in Miranda v. Arizona in ruling that any statements elicited from witnesses who had not been read their rights could be excluded in subsequent criminal proceedings.[8] 

Gorsuch has generally sided with the government in Fifth Amendment challenges to confessions.  In United States v. Braden, Gorsuch found that a defendant’s waiver of her Miranda rights was not rendered invalid by her intoxication at the time.[9]  Similarly, in another case, Gorsuch rejected a challenge against a prosecutor who had negatively commented on a defendant’s failure to present evidence.[10]

In contrast, in United States v. Benard, where the Tenth Circuit rejected Fifth Amendment challenges in a firearm possession case, Gorsuch dissented.[11]  In dissent, Gorsuch argued that the government had failed to prove that statements admitted in violation of the Fifth Amendment did not affect the defendant’s ultimate conviction.[12]

Sixth Amendment – Right to Counsel

The Sixth Amendment protects our right to counsel during criminal proceedings.  The Supreme Court has held that this right is violated when defense counsel is ineffective.[13]  A counsel’s performance is ineffective when it meets two criteria: it falls below an objective standard of reasonableness (deficient); and it prejudices the defendant (prejudice).[14]

In most of the ineffective assistance of counsel cases he addressed, Gorsuch rejected the claims on the second prong of Strickland, arguing that the deficient performance of defense counsel did not change the outcome of the trial.[15]  In a handful of cases, Gorsuch rejected the claims on the first prong of Strickland, finding that counsel’s performance was not deficient.[16]  In comparison, we were unable to find a single case in which Gorsuch found that a defendant had satisfied both prongs of Strickland and was entitled to a new trial.

Fifth Amendment – Brady Evidence

Under the Supreme Court’s decision in Brady v. Maryland, prosecutors are required to turn over all exculpatory evidence (evidence that could exonerate the defendant) to the defense.[17] In order to be turned over to the defense, evidence must be “material” to either guilt or punishment.

Gorsuch has rejected most of the Brady cases he has addressed on one of three grounds: the materiality of the withheld evidence;[18] the lack of prejudice from the withholding;[19] or the procedural bar of the Brady claim.[20]  However, in one notable case, Gorsuch excoriated prosecutors for failing to disclose emails that would have supported the defendant’s entrapment defense.[21]  While the majority of the Tenth Circuit panel affirmed the conviction in the case, Gorsuch dissented, noting:

“The conviction before us, hanging on the barest of threads and dependant on the omission of exculpatory evidence, is ‘inconsistent with the rudimentary demands of justice.’”[22]

Overall Assessment

The Fifth and Sixth Amendments of the Constitution protect our right to a fair trial.  The presumption of innocence, the bar against double jeopardy, and the right to counsel have worked to ensure that defendants in the American justice system are accorded due process before conviction.  Even in an era where most criminal cases are settled by plea bargaining, these provisions protect defendants who exercise their right to a jury trial.

Gorsuch’s overall record on these issues is mixed.  While he has sometimes shown a willingness to read these provisions strictly, protecting defendant’s rights, he has also shown a tendency to excuse government errors in producing exculpatory documents, and the deficient performance of counsel.  Overall, while he is unlikely to be the champion of criminal procedural rights Justice Scalia was, there is no reason to believe that a Justice Gorsuch would bring a prosecutorial bias to the bench.

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.

[1] See Evans v. Michigan, 133 S.Ct. 1069, 1074, 185 L.Ed.2d 124 (2013).

[2] See Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 679, 7 L.Ed.2d 629 (1962) (per curiam).

[3] See Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).

[4] Wood v. Milyard, 721 F.3d 1190, 1195 (10th Cir. 2013).

[5] United States v. Christie, 717 F.3d 1156, 1172 (10th Cir. 2013).

[6] See United States v. Bergman, 746 F.3d 1128, 1131 (10th Cir. 2014).

[7] See United States v. Mendivil, 208 F. App’x 647, 650 (10th Cir. 2006).

[8] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.E.2d 694 (1963).

[9] United States v. Braden, 458 F. App’x 751, 753 (10th Cir. 2012).

[10] Matthews v. Workman, 577 F.3d 1175, 1188 (10th Cir. 2009).  See also Littlesun v. Parker, 380 F. App’x 758, 761 (10th Cir. 2010).

[11] United States v. Benard, 680 F.3d 1206, 1215 (10th Cir. 2012) (Gorsuch, J., concurring in part and dissenting in part).

[12] See id.

[13] Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.E.2d 674 (1984).

[14] See id.

[15] See, e.g., Chavez v. Franco, 609 F. App’x 527, 528–29 (10th Cir. 2015); United States v. Hendrix, 571 F. App’x 661, 663 (10th Cir. 2014); United States v. Goodwin, 541 F. App’x 851, 853 (10th Cir. 2013); United States v. Summers, 539 F. App’x 877, 880 (10th Cir. 2013); United States v. Diaz, 500 F. App’x 798, 799 (10th Cir. 2012); Jones v. Hartley, 366 F. App’x 964, 965 (10th Cir. 2010); Williams v. Zavaras, No. 09-1518, 2010 WL 653320, at *2 (10th Cir. Feb. 24, 2010).

[16] See, e.g., Wickham v. Friel, 299 F. App’x 813, 817 (10th Cir. 2008); United States v. Cervantes, 267 F. App’x 741, 743–44 (10th Cir. 2008); United States v. Golden, 255 F. App’x 319, 322–23 (10th Cir. 2007); United States v. Mullane, 226 F. App’x 810, 813 (10th Cir. 2007).

[17] Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.E.2d 215 (1963).

[18] See, e.g., Banks v. Workman, 692 F.3d 1133, 1144 (10th Cir. 2012).

[19] See, e.g., United States v. Rivera, 478 F. App’x 509, 511 (10th Cir. 2012).

[20] See, e.g., Smith v. Addison, 373 F. App’x 886, 889 (10th Cir. 2010).

[21] United States v. Ford, 550 F.3d 975 (10th Cir. 2008).

[22] Id. at 995 (Gorsuch, J., dissenting) (quoting Brady v. Maryland) (internal quotation marks omitted).

President Trump Announces His First Circuit Court Nomination – Judge Amul R. Thapar

Today, President Trump announced his intent to nominate Judge Amul R. Thapar to a Kentucky seat on the Sixth Circuit Court of Appeals.  Judge Thapar, who was the first Indian-American federal judge upon his confirmation in 2007, is currently serving on the U.S. District Court for the Eastern District of Kentucky.  This is President Trump’s first nomination for a lower court seat.  There are currently over 135 vacancies in the federal judiciary.

Judge Neil Gorsuch – Nominee to be Associate Justice of the Supreme Court: Part Five – Bivens and 1983

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.

During an interview given over the weekend, Judge Harris Hartz of the Tenth Circuit Court of Appeals, a colleague of Judge Neil Gorsuch, described the latter as respecting “limits on [government] power.”[1]  However, in most cases challenging the deprivation of constitutional rights by the government, Gorsuch has found himself on the government’s side.

42 U.S.C. § 1983 allows individuals whose rights have been violated to sue responsible state officials.[2]  Similar to §1983, the Supreme Court’s decision in Bivens v. Six Unknown Named Agents allows individuals to sue federal actors who have violated their rights under color of law.[3]  Suits under §1983 and Bivens must be relatively circumscribed in scope.  Such actions can only be brought against individual actors, and not against the state in general.[4]  You cannot recover unless the state actor, in depriving your rights, have acted “under color of law.”[5]  In other words, the actions of rogue actors acting outside the law cannot be subject to Bivens or §1983 liability.  Additionally, such actions do not extend to the conduct of private actors contracting with the government.[6]  Even given the rules constraining Bivens and §1983 actions, Gorsuch’s record on such suits stands out as government-friendly.

In his twelve years on the Tenth Circuit, Gorsuch has voted to dismiss Bivens and §1983 cases over 60 times, while only voting to grant in a handful of cases.[7]  In many of these cases, Gorsuch declined to reach the merits of the suits, dismissing for failure to exhaust administrative remedies,[8] failure to plead sufficient facts or connection,[9] and sovereign immunity.[10]

In other cases, Gorsuch has dismissed suits under the doctrine of “qualified immunity.”  Qualified Immunity protects state actors who violate the law in depriving individuals of constitutional rights, provided that the law violated is not “clearly established.”[11]  However, the doctrine has rapidly expanded to protect state actors even in cases where their conduct is clearly unlawful, as long as there is no apposite case expressly forbidding it.[12]  For his part, Gorsuch has invoked qualified immunity broadly, protecting state and federal actors from suit over unlawful conduct.[13] 

In one notable example, Gorsuch found that an officer who fired a taser gun at an individual’s head (against training) was nonetheless entitled to qualified immunity.[14]  In dismissing the suit against him, Gorsuch noted that qualified immunity should “protect from civil liability for damages all officers except the plainly incompetent or those who knowingly violate the law. (internal quotation marks omitted).”[15]  His decision sparked separate opinions by both of his fellow panel members.  In her dissent, Judge Mary Briscoe noted that the application of qualified immunity was a mistake, noting that it was clearly established that “it is excessive to use a Taser to control a target without having any reason to believe that a lesser amount of force—or a verbal command—could not exact compliance.”[16]  In his own concurrence, Judge Scott Matheson noted there was “a constitutional violation in this case”,[17] while agreeing with Gorsuch on the dismissal of the case.

In another case, Judge Carlos Lucero wrote for a Tenth Circuit panel rejecting qualified immunity for police officers who unreasonably delayed a defendant’s arraignment.[18]  Gorsuch dissented from the decision, arguing that, while it is clearly established that the Fourth Amendment protects the right to a timely arraignment, the contours of such a right are not clearly established.[19]

Gorsuch has sided with §1983 plaintiffs in one notable case.  In Browder v. City of Albuquerque, Gorsuch held that an officer who collided with a car while speeding through a red light was not entitled to qualified immunity.[20]  Nevertheless, Gorsuch wrote a concurrence to his own opinion in the case, decrying the use of a §1983 action in the case, and arguing that state tort law would have adequately remedied the plaintiffs.[21]

Looking at Gorsuch’s Bivens and §1983 jurisprudence, it is difficult to see a commitment to check government power.  Rather, the record suggests that Gorsuch sees §1983 as limited to rare and extraordinary circumstances, and that most, if not all, constitutional violations are shielded by qualified immunity.  To be fair to Gorsuch, he is not the only judge to take an expansive view of qualified immunity.[22]  Nevertheless, given the media narrative on Gorsuch’s willingness to limit government power,[23] such a willingness does not extend to individuals whose rights have been wrongly deprived.

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.

[1] Zoe Tillman, A Federal Judge Offers A Behind-the-Bench Look at Trump’s First Supreme Court Nominee, BuzzfeedNews, Mar. 19, 2017, https://www.buzzfeed.com/zoetillman/judge-offers-a-behind-the-bench-look-at-trumps-supreme?utm_term=.hxbaP7R7py#.lqk2MJ1Jvo (quoting Judge Harris Hartz).

[2] See 42 U.S.C. § 1983 (West) (“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…”).

[3] Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397, 91 S. Ct. 1999, 2005, 29 L. Ed. 2d 619 (1971).

[4] See, F.D.I.C. v. Meyer, 510 U.S. 471, 472, 114 S. Ct. 996, 999, 127 L. Ed. 2d 308 (1994) (declining to extend Bivens to cover federal agencies).

[5] See West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 2254–55, 101 L. Ed. 2d 40 (U.S. 1988) (“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.”).

[6] See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 63, 122 S. Ct. 515, 517, 151 L. Ed. 2d 456 (2001).

[7] Compare In re Estate of Bleck ex rel. Churchill, 643 F. App’x 754, 757 (10th Cir. 2016) (rejecting excessive force claim brought against police officer) with Riddle v. Hickenlooper, 742 F.3d 922, 930 (10th Cir. 2014) (holding that Colorado’s restrictions on campaign financing violates the Equal Protection Clause).

[8] See Farris v. Frazier, 599 F. App’x 851 (10th Cir. 2015), cert. dismissed, 136 S. Ct. 833, 193 L. Ed. 2d 703 (2016).

[9] See Jones v. Kansas, 572 F. App’x 648, 649 (10th Cir. 2014); Crabtree v. Oklahoma, 564 F. App’x 402, 404 (10th Cir. 2014).

[10] See Johnson v. Oklahoma Dep’t of Transp., 645 F. App’x 765, 768 (10th Cir. 2016).

[11] David French, Another Federal Court of Appeal Attacks the Second Amendment, Nat’l Rev., Mar. 20, 2017, http://www.nationalreview.com/article/445909/andrew-scott-case-second-amendment-attacked-eleventh-circuit-appeals-court.

[12] See id.

[13] See, e.g., Pippin v. Elbert Cty., Colorado, 604 F. App’x 636, 637 (10th Cir. 2015); Hernandez v. Story, 459 F. App’x 697, 698 (10th Cir. 2012); Aragon v. City of Albuquerque, 423 F. App’x 790, 794 (10th Cir. 2011).  

[14] Wilson v. City of Lafayette, 510 F. App’x 775, 780 (10th Cir. 2013).

[15] Id.

[16] Id. at 787 (Briscoe, J., concurring in part and and dissenting in part).

[17] Id. At 792. (Matheson, J., concurring).

[18] Webb v. Thompson, 643 F. App’x 718, 723-24 (10th Cir. 2016).

[19] See id. at 725 (Gorsuch, J., concurring in part and dissenting in part).

[20] See Browder v. City of Albuquerque, 787 F.3d 1076 (10th Cir. 2015).

[21] See id. At 1085 (Gorsuch, J., concurring) (“…there’s little reason to think state courts would fail to fulfill their oaths to see justice done in this case…”).

[22] See White v. Pauly, 580 U.S. __ (2017) (per curiam) (reversing the denial of qualified immunity to officers who entered a home without identifying themselves as police officers and killed the residents who attempted to defend themselves).

[23] See, e.g., Nina Totenberg, Trump’s Supreme Court Nominee Skeptical of Federal Agency Power, Nat’l Pub. Radio, Mar. 17, 2017, http://www.npr.org/2017/03/17/520310365/trumps-supreme-court-nominee-skeptical-of-federal-agency-power.  

Judge Neil Gorsuch – Nominee to be Associate Justice of the Supreme Court: Part Four – Standing

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.

Today, the Senate Judiciary Committee will begin its consideration of Judge Neil Gorsuch’s nomination to the Supreme Court.  The first day of the hearing will include detailed opening statements by all Senators on the Committee, as well as the individuals introducing the nominee, and Gorsuch himself.[1]  In their statements, Senators will likely reference the U.S. Constitution, the importance of the Supreme Court, and their view on the proper role of a judge.  They may also reference the failed nomination of Judge Merrick Garland, as well as hot-button legal issues, including the constitutional right to privacy, the scope of the Second Amendment, and the government’s ability to regulate money in politics.  However, there is one important legal concept that is unlikely to be addressed: standing.

While standing, and its related doctrines of ripeness and mootness draw little attention in the media, they are nonetheless crucial for litigants.  Article III of the Constitution requires any person filing suit to meet three requirements to have standing to sue.[2]  They must have suffered an “injury in fact,” the injury must be causally connected to the offending conduct, and the injury must be “redressable” by the court.[3]  When these requirements are interpreted narrowly, plaintiffs can find themselves unable to access courts to protect their rights.  When they are interpreted broadly, courts can be overburdened with vexatious litigation.[4]  As such, Gorsuch’s views on standing will have an important impact on access to courts across the country.

Gorsuch’s Record on Standing

Determining Gorsuch’s views on standing is difficult given the relatively few opinions on the subject he has written.  While Gorsuch has voted numerous times to reject plaintiffs’ claims of standing in civil cases, many of these opinions are brief and unpublished.[5]  However, the handful of cases in which Gorsuch analyzes standing suggest that he takes a relatively narrow interpretation of the doctrine.

In re Krause involved a government suit against a Chapter 7 debtor, seeking a tax lien against assets fraudulently hidden in trusts.[6]  Among other claims, Gorsuch rejected a challenge by the debtor’s children to the government action, arguing that they lacked “prudential standing.”[7]  In ruling so, Gorsuch notes that, while the amended bankruptcy code no longer restricts standing to “persons aggrieved” in bankruptcy proceedings, courts can adopt a stricter standard for policy reasons.[8]  Specifically, Gorsuch notes:

“…without such a requirement [of prudential standing], bankruptcy litigation could easily ‘become mired in endless appeals brought by a myriad of parties who are indirectly affected by every bankruptcy court order.’”[9]

In another case, Gorsuch rejected, on standing grounds, a suit against a defendant who engaged in fraudulent financial schemes by the shareholders in an injured corporation; Judge Gorsuch specifically argued that the corporation itself is the only entity given statutory standing by Colorado law.[10]

However, Gorsuch has also found that standing has been met in one notable case.  Writing for a majority of six judges in an en banc case, Gorsuch ruled that Indian tribes who are required to undergo a second round of state permitting before mining on their property have suffered an “injury in fact” sufficient to give them standing.[11]  In his opinion, Gorsuch rejected government arguments to the contrary, stating that a second round of state permitting would impose “additional administrative costs” on the tribes, thereby injuring them.[12]

Gorsuch’s Record on Ripeness and Mootness

The twin doctrines of ripeness and mootness work alongside standing to ensure that federal courts address only “cases and controversies.”.  A case is ripe for judicial review when it is “appropriate for th[e] case to be litigated in federal court by these parties at this time.”[13] Gorsuch has a relatively thin record on addressing ripeness issues.  In United States v. Pope, Gorsuch rejected a Second Amendment challenge to a conviction for possession of a gun brought by the defendant, arguing that the challenge was not ripe for judicial review.[14]  Specifically, Gorsuch noted that “the material facts on which Mr. Pope’s motion to dismiss relies are outside the indictment, hotly disputed by the government, and intimately bound up in the question of Mr. Pope’s guilt or innocence.”[15]  As such, Gorsuch states, the resolution of his claim must wait until the conclusion of the criminal trial.

A case is moot where the court is unable to redress the plaintiff’s injury, even if the injury was redressable when the suit began.[16]  For his part, while Gorsuch has not been hesitant in dismissing cases as moot,[17] he has also been willing to rejected mootness arguments and keep cases alive.  In one case, Gorsuch sided with abortion rights groups challenging a licensing scheme in Oklahoma permitting residents to place a “Choose Life” message on their license plates, while imposing more onerous requirements on pro-choice messages.[18]  In siding with the abortion rights groups, Gorsuch emphasized that the state’s revision of its licensing process to permit pro-choice messages did not “moot” the proceedings, because the process still imposed a viewpoint-based burden.[19]  In another case, Gorsuch held that the parents of a disabled child could bring suit against a school district under the Individuals with Disabilities Education Act (IDEA) and that the suit was not mooted by the child’s aging out of the school system.[20]

Overall Assessment

Over the last thirty years, the Supreme Court has interpreted standing doctrines narrowly, making it more difficult for plaintiffs to find their way into court, while allowing the Court to avoid ruling on the merits of potentially controversial issues.[21]  The Court has also narrowed the use of taxpayer-standing allowing citizens to challenge unconstitutional actions by the government.[22]  So far, there is nothing in Gorsuch’s record suggesting that he would halt or reverse this trend.

Nevertheless, while the standing doctrine isn’t as newsworthy as other issues that the Supreme Court addresses, it is deeply important.  It allows Justices to avoid ruling on the merits of a case, which serves as an important check on judicial power–but also means that plaintiffs are left with no remedy despite claims of injuries or rights violations.  As such, Senators should ask Gorsuch to further flesh out his views on standing.

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.

[1] Ed Whelan, The Gorsuch Hearing: Nuts and Bolts, Nat’l. Review, Mar. 17, 2017, http://www.nationalreview.com/bench-memos/445871/gorsuch-hearing-logistics.

[2] Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992).

[3] Id. at 560-61.

[4] Additionally, some commentators accuse judges of using standing issues to avoid addressing the merits of cases.  See, e.g., Gene Nichol, Rethinking Standing, 72 Cal. L. Rev. 68 (1984). Available at: http://scholarship.law.berkeley.edu/californialawreview/vol72/iss1/2.

[5] See, e.g., Rader v. C.I.R., 616 F. App’x 391 (10th Cir. 2015) (rejecting plaintiff’s standing to appeal for failure to allege any personal or direct injury); Muathe v. Fifth Third Bank, 627 F. App’x 732, 734 (10th Cir. 2015) (rejecting standing where plaintiff only alleges harm to nonparties); Backcountry Hunters & Anglers v. U.S. Forest Serv., 612 F. App’x 934, 935–36 (10th Cir. 2015) (rejecting standing for lack of redressability); DeMillard v. No Named Defendant, 407 F. App’x 332, 333 (10th Cir. 2011) (holding that private citizens do not have standing to demand the prosecution of others); Travis v. Park City Police Dep’t, 277 F. App’x 829, 830 (10th Cir. 2008) (rejecting standing in First Amendment challenge to city ordinance where plaintiff does not have any intention of violating the ordinance); Heller v. Quovadx, Inc., 245 F. App’x 839, 840 (10th Cir. 2007) (rejecting plaintiff’s standing to challenge settlement agreement).  Cf. United States v. Castro, 225 F. App’x 755, 757 (10th Cir. 2007) (rejecting criminal defendant’s standing to challenge search of his ex-girlfriend’s apartment).

[6] In re Krause, 637 F.3d 1160, 1162-63 (10th Cir. 2011)

[7] Id. at 1168.

[8] Id.

[9] Id. 

[10] Niemi v. Lasshofer, 728 F.3d 1252, 1261 (10th Cir. 2013).

[11] Hydro Res., Inc. v. U.S. E.P.A., 608 F.3d 1131, 1144-45 (10th Cir. 2010).

[12] Id. at 1145.

[13] Nat’l Advert. Co. v. City of Miami, 402 F.3d 1335, 1339 (11th Cir. 2005).

[14] United States v. Pope, 613 F.3d 1255, 1258 (10th Cir. 2010).

[15] Id. at 1257.

[16] Shawnee Tribe v. United States, 423 F.3d 1204, 1212 (10th Cir. 2005).

[17] See, e.g., Wyoming v. U.S. Dep’t of Interior, 587 F.3d 1245, 1247 (10th Cir. 2009) (“Because no such questions remain in this case, we dismiss this appeal as moot, vacate the judgment of the district court, and remand with instructions to dismiss the case for lack of subject matter jurisdiction.”).

[18] Hill v. Kemp, 478 F.3d 1236, 1243 (10th Cir. 2007).

[19] Id. (“[The state’s action] does not diminish the fact that a difference arguably preferring one competing viewpoint over another remains bedded in Oklahoma law.”).

[20] Garcia v. Bd. of Educ. of Albuquerque Pub. Sch., 520 F.3d 1116, 1123 (10th Cir. 2008).

[21] See, e.g., Hollingsworth v. Perry, 570 U.S. __, 133 S. Ct. 2652 (2013) (holding that proponents of ballot measure lacked standing from the measure’s defeat in federal court and, as such, could not appeal the decision).  See also Clapper v. Amnesty Int’l, 568 U.S. __ (2013) (holding that Amnesty International does not have standing to challenge provisions of the Foreign Intelligence Surveillance Act).

[22] See Hein v. Freedom From Religion Found., 551 U.S. 587 (2007) (holding that taxpayers did not have standing to challenge unconstitutional expenditures made by the Executive Branch).