USA TODAY International Edition
FACT CHECK: STATS DON’T MEAN MUCH ON GORSUCH
Voting with majority not necessarily a sign he’s in ‘ mainstream’
Supporters of new Supreme Court Associate Justice Neil Gorsuch describe him as a “mainstream judge.” Their evidence: He has voted nearly 99% of the time with the majority on the 10th U. S. Circuit Court of Appeals, and 97% of the court’s rulings were unanimous.
But those statistics are not unusual and provide no insight into how Gorsuch may rule on the high court.
The “vast majority” of federal appeals court cases are “decided without dissent,” and the 10th Circuit “is no exception to this general trend,” the nonpartisan Congressional Research Service said in an analysis of Gorsuch’s record.
Its report said 2.54% of the opinions issued by the 10th Circuit from 1998 to 2009 included a written dissent, citing a 2010 paper in the Loyola of Los Angeles Law Review that reviewed the opinions of six circuit courts. That paper found the 3rd Circuit ( 2.33%) and the 5th Circuit ( 1.14%) had lower dissent rates than the 10th Circuit.
As for Gorsuch, the CRS calculated the percentage of written dissents among seven judges on the 10th Circuit, and found that Gorsuch “displayed relatively more willingness to dissent from others’ majority opinions than some colleagues.” Gorsuch’s rate of dissent of 1.6% “places him in the middle” among his colleagues.
Christopher A. Cotropia, who authored the 2010 paper cited by the CRS, told us that the dissent rates for Gorsuch and his court say more about how federal appeals courts work than how Gorsuch may rule on the Supreme Court.
“He’s doing what most appellate court judges do,” Cotropia, a law professor at the University of Richmond, said in an interview. “It’s not instructive as to what he will do” on the Supreme Court.
Cotropia illustrated his point by determining the dissent rates for two associate justices, Samuel A. Alito Jr. and Sonia Sotomayor, who previously had served on circuit courts.
Alito had a 1.6% dissent rate on the 3rd Circuit Court and Sotomayor had a 0.69% dissent rate on the 2nd Circuit. Nevertheless, the judges are on opposite ex- tremes of the court. By one measure, Sotomayor is the most liberal of the Supreme Court justices and Alito is the second- most conservative.
Throughout the contentious confirmation process, the White House and Republicans described Gorsuch as “mainstream,” while Democrats criticized him as “extreme.” Those are subjective terms, and each side is entitled to its opinion.
What caught our attention is Republicans’ repeated use of the same statistics as evidence of Gorsuch’s “mainstream” judicial record.
When the Senate Judiciary Committee approved Gorsuch’s nomination on April 3 along party lines, Republican Sen. Chuck Grassley said that Gorsuch’s record on the federal appeals court “falls well within the mainstream.”
Grassley, April 3: “His record on the bench has proved that the judge falls well within the mainstream. He’s participated in 2,700 cases. He’s voted with a majority 99% of the time, and roughly 97% of those 2,700 cases were decided unanimously.”
In a blog item posted April 4, the White House used the same statistics to describe Gorsuch as “the ultimate example of a mainstream judge.”
Two days earlier on Fox News Sunday, Senate Majority Leader Mitch McConnell gave a truncated version of the GOP talking point: “In the majority, 99% of the time. Ninety- seven percent of his rulings were unanimous.”
Gorsuch himself repeatedly cited the statistics during his confirmation hearings. On March 22, Gorsuch described the 10th Circuit Court’s low dissent rate as “an amazing accomplishment.”
But such high rates of unanimity are not unusual for the federal courts of appeals, as the Congressional Research Service explained in its report on Gorsuch’s record. CRS, March 8: “Federal appellate judges are bound by Supreme Court and circuit precedent and, therefore, are not normally in a position to espouse freely their views on particular legal issues in the context of their judicial opinions. Moreover, unlike the Supreme Court, which enjoys ‘ almost complete discretion’ in selecting its cases, the federal courts of appeals are required to hear many cases as a matter of law.
“As a result, the appellate courts consider ‘ many routine cases in which the legal rules are uncontroverted.’ Perhaps indicative of the nature of federal appellate work, the vast majority of cases decided by three- judge panels of federal courts of appeals are decided without dissent.”
We take no position on Gorsuch’s appointment or whether he is “mainstream” or not. What we have found, though, is that a circuit court judge’s overall dissent rate isn’t useful in determining a nominee’s ideology.
“He’s doing what most appellate court judges do.” Christopher A. Cotropia, University of Richmond law professor