Slatery urges senators back Gorsuch for U.S. Supreme Court

Tennessee Attorney General Herbert Slatery has written the chairman of the Senate Judiciary and Tennessee’s two U.S. senators to voice support for President Trump’s nomination of Neil Gorsuch to the United States Supreme Court.

“In short, Judge Gorsuch is a champion of the structural safeguards that protect state sovereignty and individual liberty, a committed textualist and originalist, and a brilliant jurist. I urge the Senate to confirm him without delay,” says Slatery in the letter to Sens. Chuck Grassley (the Judiciary Committee chairman), Lamar Alexander and Bob Corker.

Corker has publicly declared he will vote for Gorsuch’s confirmation. Alexander has praised the nominee lavishly and denounced the notion of Democrats threatening to filibuster the nomination without explicitly saying the 10th U.S. Circuit Court of Appeals judge has his vote.

Text of Slatery’s letter is below.

The Honorable Chuck Grassley, United States Senate

Chairman of Committee on the Judiciary

135 Hart Senate Office Building

Washington, D.C. 20510

 

The Honorable Lamar Alexander, United States Senate

455 Dirksen Senate Office Building

Washington, D.C. 20510

 

The Honorable Bob Corker, United States Senate

425 Dirksen Senate Offrce Building

Washington, D.C. 20510

 

Dear Senators Grassley, Alexander, and Corker:

I write to express my support for the nomination of Judge Neil Gorsuch to the Supreme Court of the United States. As the chief legal offrcer of the State of Tennessee, I deeply appreciate the Supreme Court’s critical role in preserving and fostering federalism. All too often, the States must rely on the Supreme Court to protect their sovereignty when the federal government exceeds its proper bounds. And the States are frequently the first to suffer when the Supreme Court interprets the law according to policy predilections rather than principles of textualism and originalism. Judge Gorsuch’s record reflects a strong commitment to federalism, and he is superbly qualified to fill the seat formerly occupied by Justice Antonin Scalia.

 

As a judge on the U.S. Court of Appeals for the Tenth Circuit, Judge Gorsuch has authored a number of opinions demonstrating his respect for state sovereignty. In two opinions, Judge Gorsuch upheld state laws against dormant Commerce Clause challenges while questioning whether that doctrine is consistent with an original understanding of the Constitution. See Direct Marketing Ass ‘n v. Brohl,8l4 F.3d 1129, lI47 (10th Cir. 2016) (Gorsuch, J., concurring); Energlt and Environment Legal Institute v. Epel,793 F.3d 1169 (1Oth Cir.2015). In another opinion, Gorsuch dissented from the majority’s holding in Wilson v. LT/orkman, 57J F.3d 1284 (1Oth Cir. 2009) (en banc), that certain decisions by the Oklahoma state courts disposing of ineffective assistance claims were not entitled to deference under the Antiteruorism and Effective Death Penalty Act (“AEDPA”). He faulted the majority for failing to treat state courts “like instruments of sovereign govenìments” and explained that AEDPA was intended to “give meaning to principles of federalism and comity and afford the judgments of state courts respect and deferencewithoutregardtothelengthoftheirexplications.” Id.at1318 (Gorsuch,J.,dissenting)’

 

Judge Gorsuch has also authored opinions sharply criticizing the Chevron and Brand X doctrines, which require courts to defer to a federal administrative agency’s reasonable interpretation of federal law, even when doing so means that the court must overrule its existing statutory interpretation. See Gutieruez-Brizuela v. Lynch,834 F.3d II42, 1149 (1Oth Cit.2016) (Gorsuch, J., concurring); De Niz Robles v. Lynch,803 F.3d 1165, i 171 (10th Cir.20I5). As Judge Gorsuch has persuasively argued, those doctrines permit the concentration of far too much power in the executive branch of the federal government. That power, of course, is often wielded against the States and their citizens in the form of burdensome regulations. In many instances state attorneys  general have questioned whether Congressional authority exists for these actions by administrative agencies. Judge Gorsuch has a healthy respect for the separate and distinct powers and functions of our three separate branches of government.

 

Importantly, in both his opinions and extra-judicial speeches and writings, Judge Gorsuch has emphasized that the role of judges is to “apply the law as it is, . . . looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be-not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.” Neil M. Gorsuch, Of Lions and Bears, Judges and Legislators, andthe Legacy ofJustice Scalia,68 Case W. Res. L. Rev. 905, 906 (2016); see also United States v. Spaudling,802 F.3d 1110, 1133 (1Oth Cir. 2015) (Gorsuch, J., dissenting) (“[]t is not our  business to substitute [Congress’s]judgment for ours based on our own views of optimal policy.”). Adhering to this principle will ensure that significant social policy decisions are made at the state level where they belong.

 

In short, Judge Gorsuch is a champion of the structural safeguards that protect state sovereignty and individual liberty, a committed textualist and originalist, and a brilliant jurist. I urge the Senate to confirm him without delay.

 

Sincerely,

Herbert H. Slatery III

Attorney General and Reporter

State of Tennessee

One Response to Slatery urges senators back Gorsuch for U.S. Supreme Court

  • Michael Lottman says:

    Gorsuch has a wall full of fancy law degrees, but he does not have much real-world experience or any understanding of what it is to be poor and/or a minority in America. For him to say he will “apply the law as it is” is simply ridiculous, because the Supreme Court is not a bar exam or a court of appeals but rather the place where the law is made in difficult cases and unprecedented situations. And now that Scalia’s intimidating presence is gone, lawyers and judges are realizing that “originalism” is a lot of nonsense, since there is no way to determine “what a reasonable reader at the time of the events in question would have understood the law to be” unless you are a psychic or a mind-reader or, more likely, unless you factor your own predispositions into this impossible determination. This guy is just another elitist judge.

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Former Knoxville News Sentinel capitol bureau chief Tom Humphrey writes about Tennessee politics, government, and legislative news.
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