At the start of this week, I penned a post critical of how President Trump handled the firing of Sally Yates. Today, I write to commend his nomination of Judge Gorsuch for the United States Supreme Court.
Textualists and the criminal appellate bar are natural allies. And such is the case with this pick. I want to discuss briefly one case here to give you a glimpse of how a Justice Gorsuch might approach criminal cases. And if you have about forty-five minutes, I cannot recommend enough the most recent edition of the First Mondays Podcast, where you will find an interview with a former Gorsuch clerk and a discussion of some of the judge’s more notable tenth-circuit opinions (I swear these guys aren’t paying me to promote them).
The case I want to highlight is United States v. Gamez Perez. In that case, Judge Gorsuch wrote a dissent to a petition for rehearing en banc. Here was the issue. Mr. Gamez Perez was convicted to possession of a firearm by a convicted felon. His defense was that he did not know that he was a convicted felon. He had good reason not to know his status as a felon. When he entered a plea to the underlying offense in the state system, the state-court judge told him that he was not a felon. He was later charged with possessing a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The opinion in the case was that the statute required only that a defendant know that he was in possession of a firearm. The court held that there was no mens rea element for the status of a convicted felon.
Judge Gorsuch dissented reasoning that the knowledge element should spread to include knowledge that a defendant is a convicted felon. He based his reasoning on a fairly established canon of statutory construction that mens rea language, if placed at the beginning of a sentence spread to all other substantive elements of the statute. And he based his opinion on basic rules of grammar and usage. Here are a couple of points that I like about Judge Gorsuch’s approach:
- First, his writing style is excellent. I could hand this opinion to a non-lawyer friend and feel confident that she could follow it. But an appellate lawyer would see that the writing is professional and thorough. There is no higher praise for legal writing than that. If I am going to read a justice’s opinions for the next 30 years, I like knowing that it won’t give me headaches.
- He reads the text, researches the law, and lets those things guide him to the result. He does not envision a result then bend the law to get there. This approach may be bad for the criminal defendant in specific instances. But it will always be fair to the criminal defendant and to the prosecution. I find the approach to be sadly rare. The criminal defense bar endures no end of judicial linguistic gymnastics so that law enforcement can “get the bad guy.” Just today, I was speaking to a potential client about the standard for getting something done in a post-conviction matter. And in the first half of my explanation I explained the standard under the law. In the second half, I explained how the just would really decide the case. It is nice when the relevant statute is the guide to how the case will be decided.
- He seems to care about the defendant’s plight. While he is not bending the law to get to a result, he seems genuinely troubled that the state-level judge told the defendant that he was not a felon, and the defendant relied upon those re-assurances to his extreme detriment.
- He is suspicious of arguments about legislative history where the statute is clear on its face. Whenever I have a solid argument on the law and a judge’s opinion starts getting into legislative history, I know that I am about to call a client to relay bad news.
In my career, I have never minded judges who sentence harshly. I have never minded judges who run their calendars in a controlling way. Sentencing and calendar management are what judges do. I have always disliked dealing with judges with an agenda that spills into how they rule.
Prosecutors Apologists refer to this as “folksy wisdom,” “common sense,” or say “he always seems to get to the right place.” A judge who looks at the law, applies it to the facts, and works hard to be fair is about as much as you an ask for in a judge. And based upon this case and others I have read out of the Tench Circuit, Judge Gorsuch looks like a solid pick.