On Criminal Justice and Executive Branch Power, Neil Gorsuch May Be More ‘Liberal’ Than Merrick Garland

Senate Democrats are threatening to mount a filibuster this week against Trump Supreme Court nominee Neil Gorsuch. Why? Among other reasons, the Democrats say they want some payback for last year's Republican stonewalling of Obama Supreme Court pick Merrick Garland, whose SCOTUS nomination languished for months without getting so much as a hearing from the Senate Judiciary Committee. As Democratic Sen. Thomas Carper (Del.) recently told The Washington Post, "I have a very hard time getting over what was done to Merrick Garland. That's a wrong that should be righted."

While the Democrats are busy trying to right that wrong this week they might also take a moment to consider whether Merrick Garland was really all that preferable to Neil Gorsuch on certain issues that Democrats claim to care deeply about. After all, remember that when President Obama first nominated Garland, many liberal activists spoke out in protest and disappointment. And it was no wonder why. As I noted at the time, "while Garland is undoubtedly a legal liberal, his record reflects a version of legal liberalism that tends to line up in favor of broad judicial deference to law enforcement and wartime executive power."

I leave it to Senate Democrats to ponder whether or not that is the sort of justice they would like to see on the Supreme Court in the era of President Trump and Attorney General Sessions.

Meanwhile, when it comes to some of those very same issues, Neil Gorsuch may well be more "liberal" than Merrick Garland. Take criminal justice. Garland's record is that of a judge who routinely sides with prosecutors and police. As SCOTUSblog founder Tom Goldstein concluded, "Judge Garland rarely votes in favor of criminal defendants' appeals of their convictions." By contrast, Gorsuch's record reveals a judge who takes the Fourth Amendment seriously as a constitutional safeguard designed to protect all persons, including unpopular criminal suspects, against abusive law enforcement tactics.

Along similar lines, Garland is well-known for advocating judicial deference to both executive branch agencies and to those agencies' interpretations of the laws and regulations they are supposed to enforce. Gorsuch is famous for taking the opposite view. Indeed, Gorsuch's most well-known opinion came in a case in which the Board of Immigration Appeals overstepped its lawful authority in an effort to deprive an undocumented immigrant of his rights. Gorsuch ruled against that executive branch agency. Garland's record, on the other hand, strongly suggests that he would have deferred to the executive agency under the same circumstances.

Perhaps the Democrats are right to seek political retaliation for the fact that their party's nominee never even got a hearing. But perhaps some Democrats might also be quietly relieved that the same nominee never made it to SCOTUS.