Leftists Accuse Gorsuch Of Caring Too Much About Normal People And Not Enough About Bureaucrats

Three years before he threatened him while standing on the steps of the Supreme Court, Sen. Chuck Schumer, D-N.Y., said the problem with Neil Gorsuch was that his decisions as a federal judge were awful for the average working American.

“When the chips are down, far too often he sides with the powerful few over everyday Americans just trying to get a fair shake,” the powerful Schumer said against Gorsuch’s nomination.

On the first day of those confirmation hearings, Sen. Dick Durbin, D-Ill., said, “In case after case, you have dismissed or rejected efforts by workers and families to recognize their rights or defend their freedoms.”

Now, Gorsuch’s left-wing critics say his problem is actually the complete opposite. They say he cares too much about the little guy and not enough about the bureaucracy that goes after the little guy.

Yes, really.

The criticism stems from a book Gorsuch recently co-authored with Janie Nitze titled Over Ruled: The Human Toll Of Too Much Law.

For a book written by a Supreme Court associate justice and one of his former clerks, it’s extremely accessible. The authors note in their introduction that they did not intend it as a legal treatise or academic dissertation so much as a collection of stories based on original reporting and research about the struggle facing Americans overwhelmed with the deluge of Byzantine laws and regulations coming out of Washington.

The Washington Post’s Ruth Marcus was the first to make the criticism in a pedantic but defensible column in August. She claimed she didn’t oppose Gorsuch and Nitze’s philosophy so much as felt they didn’t do enough to defend the perspective of the administrative state bureaucrats zealously enforcing laws, statutes, and regulations. Marcus felt that they should have included more facts that made the case for why the government was going so hard against some of the Americans profiled by Gorsuch and Nitze.

Politico magazine’s senior writer Ankush Khardori, a controversial former Department of Justice prosecutor, took the criticism much further and did so much more histrionically.

Apparently upset that Gorsuch gave interviews to various journalists and podcasters, but not to him, he penned an emotional and tendentious tirade railing against the book and attacking Gorsuch for declining to sit down with him.

“Gorsuch was not willing to speak with me or answer any questions about his book, despite having spent much of the summer doing interviews with friendly conservative media figures to promote his book,” Khardori asserted, giving as an example a “legal analyst who clerked with Gorsuch and gushed over his nomination to the court.”

Hurt feelings are understandable, but that is just a completely inaccurate way to describe who Gorsuch spoke to. For one thing, Gorsuch didn’t just sit for interviews with conservative and centrist outlets, but also left-wing media outlets such as The Atlantic, CBS, and PBS.

And the man described by Khardori merely as a “legal analyst” is literally Jeffrey Rosen, one of the more widely read legal commentators in the country. Rosen has interviewed numerous Supreme Court justices, including Chief Justice John Roberts, and Justices John Paul Stevens, Stephen Breyer, Elena Kagan, Ruth Bader Ginsburg, and Anthony Kennedy. In fact, Ruth Bader Ginsburg reportedly credited him with helping her get nominated to the Supreme Court. Rosen is the president and CEO of the National Constitution Center, and a law professor at the George Washington University Law School. “Legal analyst” doesn’t quite capture it. As for gushing, it’s more accurate to say he provided accurate analysis that Gorsuch was widely respected by legal scholars, regardless of their political bias.

Much of the Politico piece focuses on Khardori’s inability to land an interview with Gorsuch. His resulting article critiques the book’s description of John Yates, a commercial fisherman featured in the book who was prosecuted under the Sarbanes-Oxley Act for his handling of undersize fish. Sarbanes-Oxley was passed after a few accounting scandals at large corporations and it mandated financial record keeping and reporting for corporations. The federal government also likes to use its various provisions to go after average Americans.

You can get up to speed on the case, as it turns out, by reading the Politico article from 2014 headlined, “I got busted for catching a few undersized grouper. You won’t believe what happened next.” Ten years on from that publication date, Politico’s Khardori is livid with Gorsuch and Nitze for telling the story without including all of the convoluted facts in the case that dragged on for seven and a half years before being overturned at the Supreme Court. Or, to be precise, Khardori is upset that they didn’t include evidence that pointed to Yates’ guilt, not that Gorsuch and Nitze ever deny he was convicted. If Khardori was concerned that they also didn’t mention all the evidence pointing to his innocence, he didn’t mention it.

“After two months of trying and failing to get an audience with Gorsuch, I asked Gorsuch’s book publisher if he would comment simply on the problems with his chapter on John Yates: Why had he omitted some key facts? Was it an honest error? And would he, as a judge, accept such a misleading treatment of facts if a lawyer did something similar in a case before him?” Khardori wrote.

Interviews with sitting Supreme Court justices are some of the most difficult to obtain. Khardori, is clearly a smart individual and quite capable writer. But he’s also someone who has written extremely partisan screeds at Politico and other outlets, and accepted some of the more outlandish SCOTUS conspiracy theories peddled in Democrat information operations. He was hired at the DOJ by Andrew Weissman, who went on to make a name for himself as a primary participant in the Russia collusion hoax before joining MSNBC, and has disparaged former Attorney General Bill Barr and other people associated with the Republican Party.

More seriously, Khardori was publicly identified in the Wall Street Journal as having been under investigation by the Department of Justice’s Inspector General “for allegedly providing information to the media about another prosecution by the Justice Department, and had been on unpaid administrative leave,” before resigning. He publicly admitted to leaking information, though he didn’t mention that the DOJ Inspector General found that included Grand Jury information and recommended criminal prosecution, which was declined. He resigned ahead of an almost certain termination.

Khardori was also involved in a somewhat wild situation where he filed a complaint and publicly complained that the DOJ was abusing mutual legal-assistance treaty (MLAT) requests to improperly extend the statute of limitations in certain cases. Defense attorneys in cases affected by MLATs understandably tried to get their cases dismissed on the basis of this complaint. In one such example, Khardori attempted to intervene in a case affected by his disclosure, but was not allowed on the grounds that he had previously led the prosecution he later tried to intervene in. Perhaps all of this relates to why Khardori is working as a columnist instead of as an attorney at a big law firm, the more traditional path for a former DOJ prosecutor. Despite the circumstances of his own departure from DOJ, Khardori has been an outspoken advocate of the lawfare Democrats waged against former President Donald Trump, including the case involving alleged violations of the Presidential Records Act, as part of their political efforts to keep him from being re-elected.

It is not altogether shocking, then, that a sitting Supreme Court justice might prioritize other interviews before sitting with someone with a cloud of serious ethical breaches around him.

Having said that, Gorsuch’s co-author responded to Khardori’s request to their publisher. He rudely dismissed her, claiming her response was somehow unsolicited. “I never got a response from Gorsuch, but I did receive an unsolicited statement from Gorsuch’s co-author — a former clerk named Janie Nitze,” wrote Khardori. Unsolicited? He already admitted he’d written to their publisher for comment. “This didn’t appear to be the first time Nitze had mounted a public defense of the book without Gorsuch being willing to attach his own name to it,” he wrote about Nitze discussing the book she literally co-authored.

As for the substance of Khardori’s complaints, they were dealt with handily by Dan McLaughlin of National Review. His article titled “The Campaign against Justice Gorsuch’s New Book Is an Embarrassment” explains in detail how efforts to discredit the book are, as he says, extremely overhyped and misleading.

Similar to Ruth Marcus’ complaint, Khardori says that Gorsuch and Nitze left out two key facts in their telling of Yates’ story: an employee had testified that Yates ordered fish thrown overboard and he was also convicted under a different statute than the Sarbanes-Oxley charge that the Supreme Court looked at. The point of the story in the Gorsuch and Nitze book was not whether Yates threw any undersized fish overboard or whether he should have been punished for how he handled things when his boat was boarded by government agents. The point was that the Sarbanes-Oxley conviction was a good illustration of too many criminal laws on the books, with dramatically harsh penalties that are sought way too aggressively by government agents.

If the authors had gotten into the details, they might have looked deeper into his conviction. They also might have noted that the deckhand’s testimony was contradictory or all the evidence that pointed to Yates’ innocence. These details now demanded by various left-wing journalists were routinely viewed as irrelevant or otherwise omitted in all of the contemporaneous reporting around the case, whether at CNN, Forbes, USA Today or elsewhere. Neither did Politico look at these things, either in the essay written by Yates or various other mentions.

More importantly, why are journalists rushing to the defense of bureaucrats over and against the people they target? For many years, the Yates case has been widely seen as an example of overcriminalization and out-of-control prosecutions. The Washington Post (on more than one occasion) NPR, and other outlets all said so at the time. The National Association of Criminal Defense Lawyers highlighted the case. The Stanford Law Review used the story as a “case study in overcriminalization.” Justice Ruth Bader Ginsburg wrote the opinion, but even Justice Elena Kagan, in her dissent, shared the concern over overcriminalization and overprosecution. She wrote, “Still and all, I tend to think, for the reasons the plurality gives, that [Section 1519 of Sarbanes-Oxley] is a bad law—too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And I’d go further: In those ways, §1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.”

Now Politico and The Washington Post are rushing to the defense of the bureaucrats, and pooh-poohing the punishment Yates received. At the time of his ordeal, Yates was raising his grandchildren and was sentenced to a month in prison over Christmas, along with various other punishments, which Khardori described as “modest.”

Khardori falsely claimed that Gorsuch and Nitze nowhere mention a separate charge under which Yates was convicted, except they did. While Gorsuch and Nitze did mention it, in a footnote, Politico apparently never mentioned the charge in all of its coverage of the case. Neither did The New York Times in its multiple mentions of the case or NPR in its mentions.

We could go on and on, but McCarthy already covered the myriad problems with Khardori’s claims.

The campaign against Supreme Court justices who fail to bend to the will of the left will undoubtedly continue. This particular attack is about as substantive as the previous ones, which is to say not very.

The Federalist