Vanderbilt law professor Timothy Meyer testified on behalf of Judge Neil Gorsuch, Donald Trump’s nominee to the Supreme Court, on Thursday in front of the Senate Judiciary Committee. He participated in a panel of ten individuals, which included lawyers and advocates, on the last day of hearings and discussed it with the Hustler.
During the first week of March, Senator Chuck Grassley (R-IA), the chairman of the committee, reached out to Meyer, who clerked for Judge Gorsuch from 2007-2008, and asked if he would be willing to testify. He immediately accepted the invitation and spoke in favor of the judge as an invitation from the majority, citing his clear and accessible writing as a strong point.
“Lawyers need to know how the Court thought the Constitution, statutes and regulations apply to the facts of the case,” Meyer said to the Committee. “But even non-lawyers, the Judge taught us, should be able to understand the stakes in a court case and the base reason a case came out the way it did. The litigants themselves deserve an explanation that does not require a lawyer to interpret.“
Professor Meyer spoke at length with the Hustler in February after Trump picked Gorsuch as his nominee, calling him the “epitome of a gentleman” and “an excellent mentor.” When preparing his written opening statement, which he submitted the Sunday prior to the hearing, he explained that he wanted to emphasize the Judge’s writing to the committee most of all.
“I was trying to convey both that he is a very excellent writer, but also that I think that the emphasis he puts on writing is related to a concern he has for the basic due process and fair notice requirements,” Meyer said. “He’s a great writer, but he’s a great writer in the service of perfecting these rule of law values.”
After talking about the Gorsuch’s commitment to writing and how he would carefully construct his introductions, often for hours, Meyer told the committee about how the Judge took the time to respond to pro se petitions from prisoners. While many courts chose not to respond to these claims, according to Meyer, Judge Gorsuch believed that they all deserved a written decision.
“Each inmate, he told me, is entitled to an explanation he can understand, no matter how far off the mark his claim,” Meyer told the Committee. “And to be frank, many of the claims we received were prepared without the aid of counsel and were difficult to understand. No matter, the judge reminded us clerks that the Court had to liberally construe, that is, to give the benefit of the doubt, to those who appear on their own behalf seeking the protection of the courts.”
One point that Meyer hadn’t planned on during his initial written submission was the Supreme Court case, Endrew F. v Douglas County School District, which had been decided during the nomination hearings. That case unanimously overturned a 2008 decision, Thompson R2-J School District v Luke P, in which the Tenth Circuit Court ruled that the district was not required to provide education above de minimis to a child with autism. Gorsuch, who wrote the opinion in that case, stated that the precedent from a previous Tenth Circuit case, Urban v Jefferson County School District, bounded them to rule in that way and thus did not violate the Individuals with Disabilities Education Act (IDEA).
“The Judge’s concern for fair notice also underlies his deep respect for precedent,” Meyer said to the Committee. “I can recall many times that Judge Gorsuch wrote that while he might have decided the case differently, a prior panel of the Tenth Circuit had already addressed the question. Indeed, I had the chance this morning to look back at the Tenth Circuit’s decision in Endrew F., which was the case the Supreme Court decided yesterday, reversing the Tenth Circuit. And in that case, the Court expressly noted that the more than de minimis standard Judge Gorsuch had applied in Thompson is actually from an earlier Tenth Circuit case in (Urban) and a line of cases that stretch from Urban until Thompson.”
After the opening statements were delivered by the ten panelists, the senators then proceeded to ask them questions. Meyer received questions from Senators John Kennedy (R-LA) and Grassley about the Judge’s fairness and responsiveness to oral arguments.
“You see him ever decide a case based purely on the personal, his personal policy preferences?” Kennedy asked.
“I didn’t ever see him bring his personal policy preferences into chambers at all,” Meyer responded.
“What does he look to get out of advocates during oral arguments? Have you ever witnessed him change his mind about a case during oral argument?” Grassley then asked.
“Oral argument is incredibly important to the Judge,” Meyer responded. “It’s part of the basic notion that the litigant should have the fair opportunity to be heard. And yes I have seen the Judge change his mind based on oral arguments. The briefs are, of course, the fullest presentation of the parties’ arguments ….I’ve seen a number of cases that the Judge’s thinking has been shaped on certain questions by the exchanges he’s had with counsel.”
For Gorsuch to be confirmed to the Court, he’ll require 60 votes from a majority Republican Senate. However, with only 52 Republican votes, he’ll likely need eight Democrats to vote in his favor. While several senators, including Chuck Schumer (D-NY) and Bernie Sanders (D-VT), have declared their opposition to Gorsuch, Meyer believes that it’s still up in the air if he’ll be confirmed without using the nuclear option.
“There’s a handful of these conservative Democrats that are in states that either lean towards or did vote for the president in the last election that I think are in play,” Meyer said. “So when you hear those people say they are going to support a filibuster, then that’s when you’ll know if the nuclear option is really (in play).”
This trip to Capitol Hill isn’t the first for Meyer. In 2013, he spoke as an expert witness in front of the Senate Foreign Relations Committee about a treaty regarding the Convention on the Rights of Persons with Disabilities. However, this testimony differed because he spoke on behalf of another person as opposed to providing further detail for a case on hand.
Professor Meyer actually wasn’t the only Vanderbilt connection during this hearing, as Leah Bressack, a Vanderbilt Law School graduate, spoke for the majority in a prior session. She clerked for Judge Gorsuch from 2009-2011, and Meyer had interviewed her for that position, which he served in two years prior.
Watch the videos below from the confirmation hearing:
Professor Meyer provides his opening statement:
Professor Meyer answers questions from Senator Kennedy:
Professor Meyer answers questions from Senator Grassley: