Antitrust Law Daily Trump High Court pick’s antitrust writings limited but suggest balance
Wednesday, February 1, 2017

Trump High Court pick’s antitrust writings limited but suggest balance

By Jeffrey May, J.D.

Judge Neil Gorsuch of the U.S. Court of Appeals in Denver has been nominated by President Donald Trump to fill the vacancy on the U.S. Supreme Court left by the passing of Justice Antonin Scalia. In announcing his pick, Trump said: "Judge Gorsuch has outstanding legal skills, a brilliant mind, tremendous discipline, and has earned bipartisan support."

Qualifications. Before his appointment to the Tenth Circuit in 2006, Gorsuch was a practicing attorney and then served in the Department of Justice as the Principal Deputy Associate Attorney General in 2005, according to the White House. At the Justice Department, Gorsuch worked in areas such as constitutional law, counterterrorism, environmental regulation, and civil rights, the Trump Administration pointed out. The nominee earned his J.D. from Harvard Law School and a Ph.D. in legal philosophy from Oxford. Gorsuch then clerked for two Supreme Court Justices, Byron White and Anthony Kennedy, who still sits on the High Court.

Sitting on the Tenth Circuit, Gorsuch’s exposure to antitrust disputes has been limited. However, Gorsuch has had the opportunity to develop his knowledge of antitrust through teaching. He has been a visiting professor at the University of Colorado Law School since 2008, where he taught ethics and antitrust law.

Prior decisions. Antitrust decisions authored by Gorsuch since joining the Tenth Circuit have been few. Moreover, these decisions have not generated the attention or the type of controvery that has surrounded some of his rulings in other areas.

Perhaps, Gorsuch's most notable antitrust decision was his 2013 ruling, rejecting Novell’s refusal to deal claims against Microsoft (Novell, Inc. v. Microsoft Corp.). The Tenth Circuit panel ended the long-running dispute, ruling that Microsoft was not illegally maintaining its monopoly in the market for Intel-compatible personal computer operating systems when it stopped sharing intellectual property with independent software vendors that wrote applications for word processing, spreadsheets, and other tasks that would compete with Microsoft’s applications for Windows 95, including the company’s Office suite. The court also turned away Novell's attempt to base its Sherman Act, Section 2 claim on Microsoft's alleged deceptive conduct. The U.S. Supreme Court subsequently denied certiorari in the case.

In 2011, Gorsuch penned an opinion, allowing a rural electrical cooperative’s claims to proceed against an Oklahoma city for purportedly tying electric and sewer services (Kay Electric Cooperative v City of Newkirk). The panel held that the city was not shielded under the state action doctrine, noting a preference for competition in the underlying state legiation.A petition for review was denied by the Supreme Court.

In addition, Gorsuch authored a 2009 opinion holding that a southwest Colorado hospital did not engage in monopolization or attempted monopolization by entering into an exclusive contract for nephrology physician services with one medical group and terminating the staff privileges of a competing kidney doctor (Four Corners Nephrology Assocs., P.C. v. Mercy Medical Ctr.). Again, in the refusal to deal context, the court did not see the challenged conduct constituting anticompetitive conduct within the meaning of Section 2 of the Sherman Act. A business, even a putative monopolist, had no antitrust duty to deal with its rivals, the court explained.

These antitrust decisions show a fairly balanced approach to antitrust law, preserving a business’s right to refuse to deal, while at the same time refusing to accept a broad reading of the state action doctrine.

Critics, however, are taking issue with some of Gorsuch’s more high-profile opinions. Among these is his concurring opinion in the 2013 en banc decision of the Tenth Circuit in Hobby Lobby Stores, Inc. v SebeliusWith Gorsuch concurring, the Tenth Circuit held that the Patient Protection and Affordable Care Act’s (ACA) (P.L. 111-148) contraceptive mandate impermissibly infringed on the religious rights of business owners who refused, in Gorsuch’s words, "to underwrite payments for drugs or devices that can have the effect of destroying a fertilized human egg." In his concurrence, Gorsuch wrote: "for some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability . . . Understanding that is the key to understanding this case."

Confirmation timeline. The timeline for the Senate confirmation process is unclear. The Senate Judiciary Committee will review Gorsuch’s record and hold a hearing on the nomination. Then, the nomination will considered by the full Senate.

Senate Judiciary Committee Ranking Member Dianne Feinstein (D., Calif.) said that "Gorsuch has a long record and it will take time to conduct a thorough review."

The nomination could also be delayed as a result of hard feelings among Senate Democrats over the refusal of Senate Republicans to consider President Obama’s March 16, 2016, nominee for the vacancy, Merrick Garland.

Among Gorsuch’s supporters is Mike Lee (R., Utah), chairman of the Senate Judiciary Committee's antitrust subcommittee. Lee pledged "to doing everything [he] can to make sure [Gorsuch] is confirmed by the Senate."

Lee added: "His opinions are well-reasoned and brilliantly written, and he has enriched the Tenth Circuit’s jurisprudence in a number of areas during his ten years on the court. He is a judge’s judge, who is well within the mainstream and always decides cases based on what the law says. He also always treats the parties appearing before him with dignity and respect."

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