A Question for Gorsuch
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

One of the questions to watch for when President Trump’s Supreme Court nominee, Judge Gorsuch, faces the Senate this week is whether the judge is a “Hamburgerian.” That’s a reference to a professor at Columbia, Philip Hamburger, who is emerging as the leading tribune of the idea that we need to rely less on administrative agencies and return the regulation of our economy to the Congress. The issue couldn’t be hotter, given that Mr. Trump’s presidential campaign featured a vow to deregulate the economy.
We set out to write about this as soon as Matt Drudge linked to a story under the headline “Supreme Court’s ideological balance at stake in confirmation fight…” It turns out to be a rocket from Reuters reporting that starting Monday, Democrats in the Senate will make the case that the judge “is a pro-business, social conservative insufficiently independent of the president.” The story quotes Senator Blumental as suggesting Judge Gorsuch faces an unusually high “burden of proof” as a “result of the president who nominated him.”
The story quotes Senator Schumer as saying that Judge Gorsuch “may act like a neutral, calm judge” but that “his record and his career clearly show he harbors a right wing, pro-corporate special interest legal agenda.” Reuters quotes a case in which Judge Gorsuch dissented from a 10th circuit decision siding with a truck driver who had abandoned his trailer in cold weather and, when fired, defeated his employer in an administrative law proceeding, to which Judge Gorsuch was disinclined to defer, preferring statute.
Judge Gorsuch didn’t quote Professor Hamburger in that case. But according to a law blogger at Chicago, Eric Posner, the judge has quoted Mr. Hamburger’s book “Is Administrative Law Unlawful?” three times. “That is three times the number of opinions citing Hamburger’s book written by all the judges in all the federal circuit courts put together,” Mr. Posner writes (Mr. Posner doesn’t say what is the one other time a circuit court has quoted Mr. Hamburger, and we can’t find it.) In any event, the Hamburger book, which last year won the Hayek Prize, couldn’t be more timely.
Mr. Posner puts a bizarre spin on the Hamburger tome. He suggests Mr. Hamburger is “anti-elite,” for claiming — quoting Mr. Posner’s version — “that the rise of executive power created a new elite class, which has displaced the ‘people,’ who enact laws through the legislatures.” He also suggests Mr. Hamburger is “anti-foreigner” because he favors British-type liberty over the kind of administrative law that prospered on the European continent. Mr. Posner also reckons Mr. Hamburger is “anti-executive,” on the theory at the executive is more prone to abuse power.
Mr. Hamburger, in a riposte, finds Mr. Posner’s sketch of his views “unrecognizable.” There is, he writes, “nothing ‘anti-elite’ in explaining the U.S. Constitution’s representative form of government and its guarantees of rights.” He reports that his past and forthcoming scholarship argues that “administrative power undermines equal voting rights by shifting much lawmaking power out of Congress into the hands of unelected administrators.” He also agues that the shift occurred in an era when the intelligentsia “regretted the boisterous sort of politics that came with equal voting rights.”
“Woodrow Wilson,” Mr. Hamburger writes, “candidly explained that ‘the reformer is bewildered’ by the need to persuade ‘a voting majority of several million heads’—especially when the reformer needed to influence ‘the mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of Negroes.’” His point is that “a class that expected deference to its knowledge was disappointed with the results of equal suffrage in a diverse society” and turned to European style administrative power.
Let Messrs. Schumer and Blumenthal put that in their pipes and smoke it. Mr. Trump ran as a president prepared to challenge some of our long-standing institutions, and the idea that our courts should defer to administrators certainly deserves to be one of them. So this is a question to hearken to in the hearings on the nomination that begin this week. Is, as Mr. Posner put it, Gorsuch Hamburgerian? If the hearings suggest that yes, Judge Gorsuch is an admirer — or follower — of Professor Hamburger, then the Senate should confirm him forthwith.