President Trump nominated Judge Neil Gorsuch to the Supreme Court just over seven weeks ago. Since then, pundits have been trying to convince us that Gorsuch is either a brilliant, independent-minded jurist, or a right-wing ideologue and Trump lackey. Like other recent nominees, Gorsuch revealed very little about his judicial philosophy during his Senate confirmation hearings, which ended on Thursday. In turn, Democratic senators focused their attack on his judicial record, painting him as “no friend of the little guy.” When Sen. Dianne Feinstein questioned Gorsuch about that record, he insisted that he was a “fair” judge and rattled off a list of cases in which he had sided with the little guy.
So what do we really know about Gorsuch’s judicial philosophy? Many smart people have looked at his writings and concluded that he’s conservative. But how conservative? Instead of arguing over cherry-picked cases and anecdotes, we took a closer look at his record. Gorsuch has participated in more than 2,700 cases since he joined the Tenth Circuit Court of Appeals in 2006. Because cases in the circuit courts are randomly assigned to three-judge panels, each judge in the circuit hears a roughly comparable mix of cases. By analyzing their votes, we can compare Gorsuch’s judicial ideology with those of his colleagues on the Tenth Circuit.
We reviewed more than 900 Tenth Circuit cases decided during Gorsuch’s tenure, including 119 in which he participated.1 We focused on two areas: immigration and employment discrimination law. Why those areas in particular? First, both are frequently litigated in the circuit courts, so they generate large sets of cases to analyze. Moreover, many academic studies have found that liberal and conservative circuit judges vote differently in both of these areas,2 making them useful in examining Gorsuch’s ideology. Finally, given concerns about the Trump administration’s approach to civil rights and the recent litigation over his immigration orders, these areas are especially relevant now.
Our results were surprising. In our analysis of those two topics, Gorsuch’s record puts him near the ideological center of the Tenth Circuit. The Tenth Circuit may be a touch more conservative than the Supreme Court,