Neil Gorsuch on Mutton Busting, Going Bigly, and Whether the Law Is an Ass

Mutton busting at the 2017 National Western Stock Show...rougher than a Senate confirmation hearing?
Mutton busting at the 2017 National Western Stock Show...rougher than a Senate confirmation hearing? Brandon Marshall
The Senate is slated to start voting on Judge Neil Gorsuch's nomination to the U.S. Supreme Court by April 4. That gives us time to mull over the testimony that the Colorado native gave during his three-day confirmation hearing last week, at which everything from Wyoming blizzards to fishing to mutton busting was discussed. Speaking of which...

When Senator Ted Cruz asked his fellow Westerner about the "Denver Rodeo," Gorsuch replied:

“Mutton busting, as you know, comes sort of like bronco-busting for adults. You take a poor little kid, you find a sheep, and you attach the one to the other and see how long they can hold on.…You know, it usually works fine when the sheep has got a lot of wool and you tell them to hold on — I tell my kids hold on monkey-style, you know? Really get in there, right? Get around it…because if you sit upright, you go flying right off, right? So you want to get in. But the problem when you get in is that you’re so locked in that you don’t want to let go, right? And so then the poor clown has to come and knock you off the sheep," observed Gorsuch. "We can talk mutton busting all day.”

But he didn't get to, because there were pesky things like issues to discuss. For example, when a senator asked about a woman's lawsuit claiming that her son had been subjected to false arrest at an Albuquerque middle school, Gorsuch replied:

“If a seventh-grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old-school. Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now-compliant thirteen-year-old to the principal’s office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option, and they offer 94 pages explaining why they think that’s so. Respectfully, I remain unpersuaded.”

In discussing that case, Gorsuch also referred to a character in Oliver Twist:

“Often enough, the law can be ‘a ass — a idiot’…and there is little we judges can do about it, for it is — or should be — emphatically our job to apply, not rewrite, the law enacted by the people’s representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands — and in that I see the best of our profession and much to admire. It’s only that, in this particular case, I don’t believe the law happens to be quite as much of an ass as they do.”

Especially when the law takes its cue from the Founding Fathers. “The Constitution doesn’t change," Gorsuch offered at another point. "The world around us changes.”

But Gorsuch also promised this: “I'm not looking to take us back to quill pens and the horse and buggy."

For much of his testimony, Gorsuch avoided getting into many specifics: "If I were to start telling you which are my favorite precedents or which are my least favorite precedents or if I view a precedent in that fashion, I would be tipping my hand and suggesting to litigants that I've already made up my mind about their cases."

And that circumspection carried over to the political process. Asked about Judge Merrick Garland's nomination being stalled last year, Gorsuch responded: “I can’t get involved in politics. There’s judicial canons that prevent me from doing that. And I think it would be very imprudent of judges to start commenting on political disputes.”

As for his own conformation process: “There’s a great deal about this process that I regret. I regret putting my family through this,” said Gorsuch, who'd clerked for Justice Byron White, the only Coloradan to sit on the Supreme Court. "When Byron White sat here, it was ninety minutes. He was through this body in two weeks, and he smoked cigarettes while he gave his testimony.”
Coloradan Neil Gorsuch with President Donald Trump, who nominated him for the U.S. Supreme Court. - ABC VIA YOUTUBE
Coloradan Neil Gorsuch with President Donald Trump, who nominated him for the U.S. Supreme Court.
ABC via YouTube
Before the hearings, of course, there was all the vetting to even be nominated for the U.S. Supreme Court. Before his name was announced, Gorsuch had met with President Donald Trump, who'd expressed disappointment that he hadn't carried Colorado. “He said something like, if he had a little more time, he thinks he would have won,” Gorsuch told the senators.

That meeting was long, but it was long enough for Trump to have an impact on Gorsuch. On the final day of his testimony, as the judge noted, "No one remembers who John Hancock was, but they know that that's his signature because he wrote his name so bigly — big and boldly."

And Gorsuch himself went bigly when asked about Trump's attacks on certain members of the federal judiciary. “When someone criticizes the honesty, the integrity or the motives of a federal judge, I find that disheartening, I find that demoralizing,” he replied. Any someone, a senator asked?

"Anyone is anyone," Gorsuch concluded.

Keep reading for Gorsuch's introductory remarks on March 21:

Here's the full transcript of Judge Neil Gorsuch's address at the start of his confirmation hearings, after he was introduced by Colorado senators Michael Bennet and Cory Gardner:

Mr. Chairman, Senator Feinstein, members of the committee. I am honored and I am humbled to be here. Since coming to Washington, I've met with over seventy senators. You've offered me a warm welcome and wise advice. Thank you. I also want to thank the president and vice president, they and their teams have been so gracious to me. And I thank them for this honor. I want to thank Senators Bennet and Gardner and General Katyal for their kind introductions, reminding us that long before we're Democrats or Republicans, we're Americans.

Sitting here, I'm acutely aware of my own imperfections, and I pledge to each of you and the American people that if I'm confirmed, I will do all my powers permit to be a faithful servant to the Constitution and laws of this great nation. Mr. Chairman, I could not even attempt to do this without Louise, my wife of more than twenty years. The sacrifices she has made and her open and giving heart leaves me in awe. I love you so much. We started off in a place very different than this one, a tiny apartment, little to show for it. And when Louise's mother first came to visit, she was concerned by the conditions, understandably.

As I headed out the door to work, I'll never forget her whispering to her daughter in a voice I think intended to be just loud enough for me to hear, "Are you sure he's really a lawyer?"

To my teenage daughters watching out west, bathing chickens for the county fair, devising ways to keep our determined pet goat out of the garden, building a semi-functional ply-board hovercraft for science fair, driving eight hours through a Wyoming snowstorm with high school debaters in the back arguing the whole way, these are just a few of my very favorite memories. I love you girls impossibly. To my extended family here and across Colorado, when we gather it's dozens of us. We hold different political and religious views, but we are united in our love. And between the family pranks and the pack of children running rampant, whoever's hosting is usually left with, at least, one drywall repair. To my parents and grandparents, they're no longer with us, but there's no question on whose shoulders I stand.

My mom was one of the first women graduates of the University of Colorado Law School. As the first female Assistant District Attorney in Denver, she helped the program to pursue deadbeat dads, and her idea of daycare sometimes meant I got to spend the day wandering the halls or tagging along behind the police officers. She taught me that headlines are fleeting. Courage lasts. My dad taught me that success in life has very little to do with success. Kindness, he showed me, is a great virtue. He showed me, too, that there are few places closer to God than walking in the wilderness or wading a trout stream, even if it is an awfully long drive home with the family dog after he encounters a skunk.

To my grandparents, as a boy I could ride my bike to their homes. They were a huge influence. My mom's father, poor and Irish, worked to help support his family as a boy after losing his own dad. But the nuns made sure he got an education, and he became a doctor. Even after he passed away, I heard stories for years from grateful patients who recalled him kneeling by their bedsides so they might pray together. His wife, my grandmother, grew up on a Nebraska farm, where an icebox wasn't something that you plugged into the wall but something you lowered into the ground. With seven children, she never stopped moving and she never stopped loving. My dad's father made his way through college working on Denver's trolley cars. He practiced law through the Great Depression. He taught me that lawyers exist to help people with their problems, not the other way around. His wife came from a family of pioneers. She loved to fish, and she's the one who taught me how to tie a fly.

I want to thank my friends, so many of whom are here, liberals and conservatives and independents from every kind of background and belief. Many hundreds have written this committee on my behalf, and I'm truly touched by their support. They have been there for me always. Not least when we recently lost my Uncle Jack, a hero of mine and a lifelong Episcopal priest. He gave the benediction when I took an oath as a judge eleven years ago. I confess I was hoping he might offer a similar prayer soon. As it is, I know he is smiling.

I want to thank my fellow judges across the country. Judging is sometimes a lonely and hard job, but I've seen how these men and women work, how hard they work with courage and collegiality, independence and integrity. Their work that helps make real the Constitution and laws of the United States for all of us. I want to thank my legal heroes. Byron White, my mentor, a product of the West, he modeled for me judicial courage. He followed the law wherever it took him, without fear or favor to anyone. War hero, road scholar, and yes the highest paid NFL player of his day. Today, there's God, there's John Elway and there's Peyton Manning. My childhood was God and Byron White.

I also had the great fortune to clerk for Justice Kennedy. He showed me that judges can disagree without being disagreeable. That everyone who comes to court deserves respect. That a case isn't just a number or a name, but a life's story and a human being with equal dignity to my own.

Justice Scalia was a mentor, too. He reminded us that words matter. That the judge's job is to follow the words that are in the law, not replace them with those that aren't. His colleagues cherished his great humor, too. Now, we didn't agree on everything. The justice fished with the enthusiasm of a New Yorker. He thought the harder you slap the line on the water, somehow more of the fish would love it.

Finally, there's Justice Jackson. He wrote so clearly that everyone could understand his decisions. He never hid behind legal jargon. And while he was a famously fierce advocate for his client when he was a lawyer, he reminded us that when you become a judge, you fiercely defend only one client: the law.

By their example, these judges taught me about the rule of law and the importance of an independent judiciary. How hard our forebears worked to win these things, how easy they are to lose. How each generation must either take its turn carrying the baton or watch it fall.

Mr. Chairman, these days we sometimes hear judges cynically described as politicians in robes seeking to enforce their own politics rather than striving to apply the law impartially. If I thought that were true, I'd hang up the robe.

The truth is, I just don't think that's what a life in the law is about. As a lawyer for many years working the trial-court trenches, I saw judges and juries, while humanly imperfect, striving hard every day to fairly decide the cases I put to them.

As a judge now for more than a decade, I've watched my colleagues spend long days worrying over cases. Sometimes the answers we reach aren't the ones we personally prefer. Sometimes the answers follow us home at night and keep us up. But the answers we reach are always the ones we believe the law requires. And for all its imperfections, I believe that the rule of law in this nation truly is a wonder. And that it's no wonder that it's the envy of the world.

Of course, once in a while we judges do disagree. But our disagreements are not about politics, but about the law's demands. Let me offer an example. The first case I wrote as a judge to reach the Supreme Court divided five to four. The court affirmed my judgment with the support of Justices Thomas and Sotomayor, with Justices Stevens and Scalia in dissent. Now, that's a lineup some might think unusual. But actually, it's exactly the sort of thing that happens quietly day in and day out in the United States Supreme Court and in the courts across this country.

I wonder if people realize that Justices Thomas and Sotomayor agree about 60 percent of the time, or that Justices Scalia and Breyer agreed even more often than that, all in the very toughest cases in our entire legal system.

And here's another example about my record. Over the last decade, I've participated in over 2,700 appeals. Often these cases are hard, too.

Only about five percent of federal lawsuits make their way to decision in the Court of Appeals. I've served with judges appointed by President Obama all the way back to President Johnson.

And in the Tenth Circuit, we hear cases from six different states covering two time zones and 20 percent of the continental United States. But in the West, we listened to one another respectfully. We tolerate — we cherish different points of view. And we seek consensus whenever we can.

My law clerks tell me that 97 percent of those 2,700 cases I've decided were decided unanimously and that I have been in the majority 99 percent of the time. That's my record, and that's how we do things in the West.

Of course, I made my share of mistakes, too. As my daughters never tire of reminding me, putting on a robe does not make me any smarter.

And I'll never forget my first day on the job, carrying a pile of briefs up the steps to the bench, I tripped on the hem of my robe. And just about everything went flying. But troublesome as a robe can be, the robe does mean something to me, and not just that I can hide the coffee stains on my shirt.

Putting on a robe reminds us judges that it's time to lose our egos and open our minds. It serves, too, as a reminder of the modest station we judges are meant to occupy in a democracy.

In other countries, judges wear scarlet, silk, ermine. Here, judges — we judges, we buy our own plain black robes.... I can attest the standard choir outfit at the local uniform supply store. It's a pretty good deal.

Ours is a judiciary of honest black polyester. When I put on the robe, I'm also reminded that under our Constitution, it's for this body, the peoples' representatives, to make new laws, for the executive to ensure those laws are faithfully executed, and for neutral and independent judges to apply the law in the peoples' disputes.

If judges were just secret legislatures declaring not what the law is but what they would like it to be, the very idea of a government by the people and for the people would be at risk. And those who came before the court would live in fear, never sure exactly what the law requires of them except for the judge's will.

As Alexander Hamilton said, "Liberty can have nothing from — nothing to fear from judges who apply the law. But liberty has everything to fear if judges try to legislate, too."

In my decade on the bench, I've tried to treat all who come before me fairly and with respect and afford equal right to poor and rich. I've decided cases for Native Americans seeking to protect tribal lands, for class actions like one that ensured compensation for victims of large nuclear waste pollution problem produced by corporations in Colorado.

I've ruled for disabled students, for prisoners, for the accused, for workers alleging civil-rights violations, and for undocumented immigrants. Sometimes, too, I ruled against such persons. My decisions have never reflected a judgment about the people before me, only a judgment of the law and the facts at issue in each particular case.
A good judge can promise no more than that. And a good judge should guarantee no less. For a judge who likes every outcome he reaches is probably a pretty bad judge, stretching for policy results he prefers rather than those the law compels.

Mr. Chairman, as a student many years ago, I found myself walking through the old Granary burial ground in Boston. It's where Paul Revere, John Hancock and many of our founders are buried. And there, I came across the tombstone of a lawyer and judge who today is largely forgotten, as we're all destined to be soon enough.

His name was Increase Sumner. And written onto his tombstone over 200 years ago was this description of the man: "As a lawyer, he was faithful and able. As a judge, patient, impartial, decisive. In private life, he was affectionate and mild. In public life, he was dignified and firm. Party feuds were allayed by the correctness of his conduct. Calumny was silenced by the weight of his virtues and rancor softened by the amenity of his manners."

Mr. Chairman, those words stick with me. I keep them on my desk. They serve for me as a daily reminder of the law's integrity, that a useful life can be led in its service, of the hard work it takes, and an encouragement to good habits when I fail and when I falter.

At the end of it all, I can ask for nothing more than to be described as he was. And if confirmed, I pledge to you that I will do everything in my power to be that man.

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Patricia Calhoun co-founded Westword in 1977; she’s been the editor ever since. She’s a regular on the weekly CPT12 roundtable Colorado Inside Out, played a real journalist in John Sayles’s Silver City, once interviewed President Bill Clinton while wearing flip-flops, and has been honored with numerous national awards for her columns and feature-writing.
Contact: Patricia Calhoun