Gorsuch: Good with words, and thus, legal analysis?

Neil Gorsuch is a writer's judge.

I offer only a halfhearted apology for probably investing too much importance in this fact.

The ability to turn a graceful phrase, or to simplify a complicated legal argument with an earthy metaphor — or to make both a joke and a point with a single rhetorical flourish — these skills, I confess, may not be proof positive that a nominee is fully qualified for a seat on the U.S. Supreme Court.

But they are weighty evidence in his favor in my courtroom. And since, as a writer and editor first (and a court watcher about fifth) I can't deny this bias — this suspicion that writing clearly and thinking clearly are different facets of one jewel — I might as well share a few exhibits in the case for Gorsuch.

Judge Gorsuch, of course, is President Trump's choice to replace the late Antonin Scalia on the Supreme Court — and Trump promised to deliver a nominee in Scalia's image. It will horrify some while delighting others that to read Gorsuch's opinions is indeed to be reminded of Scalia — not only, but also not least, in his writerly flair.

Scalia was a wickedly witty essayist, often criticized for intemperance in his prose, seldom for dullness. He was always ready to ridicule what he considered colleagues' mistaken reasoning as "interpretive jiggery-pokery" or "sweet-mystery-of-life jurisprudence" or to sneer that it reminded him not of "disciplined legal reasoning" but of "the mystical aphorisms of the fortune cookie."

Gorsuch is gentler in skewering colleagues on the 10th Circuit Court of Appeals. If installed on the nation's highest court, maybe he'll cut deeper. But for now, the backhanded compliment is his style, as here, invoking a famous quotation from Charles Dickens:

The asinine case? It had to do with a law criminalizing junior high mischief. As Gorsuch put it: "If a seventh grader starts trading fake burps for laughs in gym class, what's a teacher to do? … Maybe today you call a police officer … I remain unpersuaded."

Gorsuch seems to be moved to genteel sarcasm not only by such overprotective laws, but also by laws so complex that no citizen can hope to comply without enlisting "an army of perfumed lawyers and lobbyists." He lampoons unthinking adherence to hoary legal precedents that leaves nonsensical rules in place like "precendential islands … surrounded by a sea of contrary law." An example is Major League Baseball's century-old antitrust exemption, which the Supreme Court has refused to extend to any other sport, meaning the rule "has lost every away game it ever played."

But nothing brings out Gorsuch's gift for clarity — and there is no theme he returns to more readily, with less provocation — than the proper role of courts, which in his view find their power and legitimacy in their limits:

"[I]n our legal order judges distinguish themselves from politicians by the oath they take to apply the law as it is, not to reshape the law as they wish it to be … . In taking the judicial oath judges do not necessarily profess a conviction that every precedent is rightly decided. But they must and do profess a conviction that a justice system that failed to attach power to precedent — one that surrendered similarly situated persons to wildly different fates at the hands of unconstrained judges — would hardly be worthy of the name."

Attentive readers may notice that Judge Gorsuch's thinking about precedent is complicated. He admits that judges often find themselves in awkward contradictions. Like Scalia, he is no legal mystic. Liberal judges find newly minted rights or powers they happen to need in constitutional "emanations" and "penumbras." Conservative "natural law" conjurers "infuse" the Constitution with helpful higher truths from the Declaration of Independence. But Gorsuch seems to see right-minded judges as working stiffs making do with the law just as they find it:

In these unsettling days, it may be most important to notice Judge Gorsuch's unusual outspokenness on the importance of the separation powers and limits on executive power. Notably, in an immigration case just last summer, in which an executive branch agency had tried to overrule court precedents and deny some illegal immigrants the chance to be granted legal status, Gorsuch wrote a highly unusual concurrence to his own majority opinion — the better to express what he really thought himself:

"There's an elephant in the room with us today. We have studiously attempted to work our way around it … . But the fact is [these legal doctrines] permit executive bureaucracies to … concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers' design. Maybe the time has come to face the behemoth …

"[T]he founders considered the separation of powers a vital guard against governmental encroachment on the people's liberties … . A government of diffused powers, they knew, is a government less capable of invading the liberties of the people."

I don't know whether President Trump entirely understands what kind of a judge he has nominated. Well, OK, I'm pretty sure he doesn't. I also suspect that if Gorsuch makes it to the high court, the results will be often wholesome and always interesting — and will make for good reading.