Justice Neil Gorsuch?

Written by Lisa A. Hayes

A Supreme Court seat has been vacant for almost a year, and the process of filling it has been permeated with showmanship and grandstanding. This was first evidenced by the Senate refusing to even hold hearings on the nomination of moderate Merrick Garland for an unprecedented nine months. More recently, President Trump has promised us that we will “love his pick,” and scheduled and rescheduled his announcement of the same to maximize attention. Earlier this evening, the White House brought a surreal taste of reality television to the process by announcing that the President had summoned two Supreme Court finalists to Washington this afternoon so that the President could announce his nominee during prime time.

The last man standing, and current Supreme Court nominee, is 10th Circuit Judge Neil Gorsuch. We are still reviewing his record, but statisticians believe his nomination advances the President’s goal of moving the Court in a more conservative direction.

Gorsuch has charted a careful path through his career, and has been careful to leave a relatively scant paper trail in his wake. A Washington insider – his mother was the head of the Environmental Protection Agency under Ronald Reagan – Judge Gorsuch is a surprising pick in light of President Trump’s campaign pledge to “drain the swamp.” Growing up, Gorsuch attended Bethesda’s Georgetown Preparatory School, and returned to Washington after law school to clerk for both the DC Circuit and Supreme Court. He then spent more than a decade as a practicing lawyer at a prominent DC law firm and the Department of Justice, before being appointed to the 10th Circuit by President George W. Bush in 2006.

Since joining the bench, most of Judge Gorsuch’s cases involving First and Fourth Amendment have focused on issues not related to technology, such as religious liberty and the death penalty. However, his decision in Doe v. Shurtleff sheds light on his approach to emerging technology issues. Shurtleff involved a convicted sex offenders’ First Amendment right of anonymity after being released from jail. The appellant, “John Doe,” argued that the state’s command that he register “internet identifiers” and the corresponding websites was unconstitutional. Judge Gorsuch rebuffed this argument and upheld the statute. The court found that while being forced to register internet identifiers did result “in the disclosure of Mr. Doe’s online identifiers to state officials, such identification will not unnecessarily interfere with his First Amendment freedom to speak anonymously.” This is because “such a disclosure would generally occur, if at all, at some time period following Mr. Doe’s speech and not at the moment he wished to be heard.” This shaky analysis provides little comfort to those who believe in the right to anonymous speech.

More recently, Judge Gorsuch upheld online Fourth Amendment rights in US v. Ackerman. There, Walter Ackerman’s ISP had an automated filter designed to thwart transmission of child pornography by comparing hashes of files sent through its network to hashes of known child porn. The filter identified one of four images attached to an email sent by Ackerman as pornography, immediately shut down his account, and forwarded a report to the National Center for Missing and Exploited Children (NCMEC), a governmental entity and agent. NCMEC opened the file without a warrant. On appeal, Ackerman argued that NCMEC’s actions amounted to an unreasonable search by government of his email and attachments because no one sought a warrant or invoked any lawful basis for failing to obtain one. Judge Gorsuch agreed, and remanded the case for further proceedings.

We will learn more about Judge Gorsuch’s judicial philosophy and writings as the confirmation process moves forward. This is a critical appointment at a pivotal moment for our country. It is likely that the courts will be called on to serve an important check on the executive branch should the President turn out to be more focused on advancing his political goals than respecting the Constitution and rule of law. Americans must be able to rely on the Supreme Court to make its own assessment of the constitutionality of legislative and executive actions.

As we have seen with critical 5-4 decisions applying constitutional doctrine to changes in technology over the years – think US v. Jones or Ashcroft v. ACLU — each and every justice on the bench matters. A Supreme Court nominee should not be treated like a reality television contestant. We must take the time to thoroughly vet Judge Gorsuch and ensure we preserve an independent judiciary.

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