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Supreme Court nominee Gorsuch could please risk managers

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Risk managers are likely going to be happy with President Donald Trump’s nomination of Neil M. Gorsuch to the vacant ninth seat on the U.S. Supreme Court, assuming he is confirmed, say experts.

Based on his opinions as a justice on the 10th U.S. Circuit Court of Appeals in Denver, these experts say Judge Gorsuch has indicated a conservative, albeit nonrigid, position that is likely to please business advocates.

His eventual assumption of the U.S. Supreme Court seat left vacant by Justice Antonin Scalia’s February 2016 death, however, is uncertain, with Democrats promising a battle because of Republican’s refusal to consider President Barack Obama’s nomination of Merrick Garland.

“Overall, he’s a fantastic pick for employers,” said Richard R. Meneghello, a partner at Fisher & Phillips L.L.P. in Portland, Oregon. “He’s got solid, conservative credentials. His prior opinions demonstrate that he seems to recognize the reality of running a business and managing employees. 

“He has acknowledged that the role of the courts is to not interfere with the way employers do their job, second guessing their business judgement, but instead just determining whether or not there was an intention of discriminatory practice at play, so employers should definitely be hearted by his selection,” said Mr. Meneghello.
“But at the same time, I don’t think he’s going to be as controversial, as much as a lightning rod, as Justice Scalia was,” Mr. Meneghello said. “He seems to be more, outwardly personable and not as sharp-tongued as Scalia.”

His opinions sound “very plain-spoken, down to earth, rational, logical but not mean spirited,” he said.

Brian Pedrow, a partner with Ballard & Spahr L.L.P. in Philadelphia, said Judge Gorsuch “seems to be pro-employer. He clearly is going to take a more conservative approach on labor and employment issues, which tends to translate into a pro-employer viewpoint.

“He honors precedent, which means his decisions should be predictable,” said Mr. Pedrow. “He doesn’t legislate. His general conservative leanings are going to favor employers over employees or unions.”

Gerald L. Maatman Jr., a partner at Seyfarth Shaw L.L.P. in Chicago, said in a statement, “The nominee is a legal luminary who is exceedingly well respected and often seen as cut from the mold of Justice Scalia. In the context of workplace legal issues, he is not regarded as pro-employer or pro-employee‎, but rather a fair-minded jurist who calls them as he sees them. If he has any tendency that marks his previous opinions, it is his refusal to give blind adherence or deference to agency regulations.”

“He’s a great selection, obviously, and extraordinarily well-qualified,” said Michael Lotito, co-chair of Littler Mendelson P.C.’s Workplace Policy Institute in San Francisco.
“One of the key things to look at is his position dealing with the Chevron deference,” he said. The Chevron deference is a principal stated in a 1984 U.S. Supreme Court ruling in Chevron U.S.A. Inc. v. Natural Resources Defense Council that held that courts should defer to agency interpretations of statutes unless they are unreasonable.

This principle has given agencies a “tremendous amount of power” on issues including the Department of Labor’s proposed overtime rule, said Mr. Lotito, Mr. Gorsuch is likely to recalibrate this principle so the three branches of the government operate “the way they were designed to do,” which will benefit business, according to Mr. Lotito.
 
“He has shown a respect for law and he probably will continue to do so,” said Donna Ferrara, Chicago-based senior vice president and managing director at Arthur J. Gallagher & Co. “He’s a sensible kind of guy. Scalia, for all his brilliance, was an emotional guy. I’m not seeing that in Judge Gorsuch.” 

“He’s not the kind of jurist who’s going to rewrite (the law). To the extent the law is something risk managers like,” they will be happy with his rulings, but will not like them if they do not like the law, she said. “On business issues, it doesn’t always fall neatly black and white, left and right,” Ms. Ferraro said.

Pointing to Justice Earl Warren, who was considered a conservative when he was appointed to the high court by President Dwight D. Eisenhower in 1953 but turned out to be very liberal, Ms. Ferraro warned, however, “People change when they’re on the Supreme Court.”

“It changes your point of view on a lot of things. It’s an extremely heavy responsibility” and “you can’t simply do what your political friends want you to do,” she said.