Judge Gorsuch On International Issues

Neil Gorsuch

Here is a look at the record of Judge Neil Gorsuch, the President’s nominee for the Supreme Court, from the Letters Blogatory perspective. A quick note on methodology: I used the same super-secret search query that I use to find cases of the day to write about. So I may not have seen all of Judge Gorsuch’s written opinions that could be called international in focus, but I’m pretty sure I’ve seen whatever there is that relates to our main areas of concern (the Hague Conventions, § 1782, the FSIA, etc.).

It turns out that Judge Gorsuch, who sits on the Court of Appeals for the Tenth Circuit, has written very little in the field. The one case I found is Big Sky Network Canada, Ltd. v. Sichuan Provincial Government, 533 F.3d 1183 (10th Cir. 2008). The interesting question in the case was the timeliness of a foreign sovereign defendant’s removal of an action to the district court. The decision has no particular political bite that I can see. If anything, Judge Gorsuch showed sympathy to comity concerns by agreeing that it was reasonable for the lower court to extend the time for removal for Chinese provincial governments that “ha[d] have never before been haled into an American court.” On the merits of the FSIA immunity issue, the judge held, correctly, “mere financial loss to an American corporation resulting from the failure to receive monies abroad cannot constitute a direct effect within the meaning of the commercial activity exception to the FSIA.”

I should say that there is no question about Judge Gorsuch’s qualifications for appointment to the Supreme Court. He’s obviously well-qualified. But he should not be confirmed. The Republicans in the Senate, who refused to allow even a committee hearing for Judge Garland for about a year, have drastically changed the rules of the game, and to say that the Democrats should play by the old rules and hope the Republicans won’t simply repeat the outrage next time around is to deny reality. Appeals from Senator McConnell or others to the traditions of the Senate, collegiality, and so forth ring hollow. If the Republicans want to muscle Judge Gorsuch through, they should simply use the power of the majority to abolish the filibuster and have done with it. But they should be forced to make that decision—the Democrats should not just roll over.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. Folkman also serves as an arbitrator and is a member of the Commercial and Consumer Panels of the American Arbitration Association. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's treatise on International Aspects of US Litigation (J. Berger, ed. 2017), and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012 and 2014 - 2016.

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