Left-Wing Letter Against Gorsuch—Part 3

by Ed Whelan

Okay, let me complete my wade (see Part 1 and Part 2 posts) through the sludge of the LCCHR letter against Supreme Court nominee Neil Gorsuch:

“Students with Disabilities”: LCCHR complains of three rulings by Gorsuch involving the Individuals with Disabilities Education Act.

I’ve already extensively addressed Gorsuch’s unanimous opinion in Thompson R2-J School District v. Luke P. in the second half of this blog post, so I’ll just highlight here that his opinion steadfastly sought to follow the Supreme Court’s 1982 ruling in Board of Education v. Rowley and succeeded so well in doing so that Judge Mary Beck Briscoe, a very liberal Clinton appointee, joined his opinion in full.

LCCHR faults Gorsuch for supposedly holding in Garcia v. Board of Education of Albuquerque Schools that “a student who left the school out of frustration with the school’s failure to follow the IDEA was entitled to no remedy.” But what Gorsuch held was that the district court did not abuse its broad discretion under IDEA in denying relief to the student. In part that was because the student already possessed the same right (to provision of a “free and appropriate public education”) that she sought to have imposed as a remedy. In part it was because the student, with her “significant record of disciplinary problems and truancy,” had “demonstrated a clear commitment to avoid school and [to] disregard the educational opportunities available to” her. (LCCHR’s assertion that the student “left the school out of frustration with the school’s failure to follow the IDEA” is a fabrication.) Once again, Briscoe joined Gorsuch’s opinion in full.

The third ruling that LCCHR complains about is A.F. v. Española Public Schools. The case presents a complicated statutory question whether a student who has settled, and had dismissed with prejudice, an IDEA complaint may pursue under other federal disabilities laws the same relief that she could have pursued under IDEA. It would take far too much time and space to present the competing views of Gorsuch’s majority opinion and the dissent (by Briscoe). I’ll limit myself to noting that the tie-breaking vote in favor of Gorsuch’s position was cast by Clinton appointee Michael R. Murphy.

“Corporate Bias”: LCCHR imagines that Gorsuch’s concurring opinion (in Gutierrez-Brizuela v. Lynch) calling into question the Chevron doctrine of judicial deference to administrative agencies reflects some sort of “corporate bias” on his part. But as I have explained, and as some folks on the Left fearing a Trump administration are coming to realize, the Chevron doctrine has no inherent ideological valence; how it operates in practice depends on who is running the agencies. Instead of recklessly impugning Gorsuch’s motives, defenders of Chevron should engage the separation-of-powers arguments that Gorsuch has made.

“Money in Politics”: LCCHR contends that Gorsuch’s concurring opinion in Riddle v. Hickenlooper “suggested courts should afford strict scrutiny … to political contribution limits.” But as I explained in this post, Gorsuch was simply highlighting the “conflicting clues” he saw in the Supreme Court guidance on the proper level of scrutiny. His approving statement about how the “federal government regulates campaign contributions” contradicts LCCHR’s silly assertion that he would be “extremely hostile to campaign finance reform measures and would essentially gut the ability of Congress and the states to set any reasonable limits on money in our elections.”

“Environmental Protection”: Beyond repeating its Chevron canard, LCCHR complains about two of Gorsuch’s cases.

LCCHR argues that Gorsuch’s dissent in United States v. Nichols “tried to revive an obscure legal doctrine that could strike down many significant environmental laws.” In case you’re wondering, that “obscure legal doctrine” that LCCHR doesn’t dare to identify is, as Gorsuch puts it, that “the prosecutor isn’t allowed to define the crimes he gets to enforce.” Or, if you prefer, that under the so-called nondelegation doctrine, the Constitution’s separation of powers places some limits on the legislative powers that Congress may delegate to executive-branch agencies, especially when criminal liability is involved.

LCCHR also complains that Gorsuch “concurred” in Wilderness Society v. Kane County. In that case, the en banc Tenth Circuit ruled by a vote of 9 to 2 that an environmentalist group’s lawsuit to vindicate the property rights of the federal government should have been dismissed. The majority opinion for six judges ruled that the group lacked prudential standing to sue. Gorsuch did not join that opinion but instead wrote an opinion concurring in the judgment that rested on mootness and redressability grounds. One of the two judges who joined his opinion was liberal Clinton appointee Mary Beck Briscoe. In quoting the dissent’s criticism of the majority opinion, LCCHR leaves the false impression that it applies to Gorsuch’s concurrence.

LCCHR also errs by omission. It fails to note, much less credit Gorsuch for, his opinion in Energy & Environmental Legal Institute v. Epel, which rejected a constitutional challenge to a Colorado clean-energy law. Lefty environmental groups celebrated Gorsuch’s ruling when it was issued.

* * *

I thank the tireless readers who have made it with me to the end. I would not have bothered to address LCCHR’s letter so extensively but for the fact that some people, whether from gullibility or political bias, might be inclined to take it seriously. But what we see here, as we’ve already seen with People for the American Way and American Bridge, is a shoddy and thinly disguised political attack made by folks who amply demonstrate that they have no idea what good judging entails or no interest in seeing it prevail.

Bench Memos

NRO’s home for judicial news and analysis.