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President Donald Trump's Supreme Court Nominee Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit, addressing media during a meeting with Senator Chuck Grassley (R-IA), on February 1, 2017. (Photo: Diego M. Radzinschi) President Donald Trump’s Supreme Court Nominee Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit, addressing media during a meeting with Senator Chuck Grassley (R-IA), on February 1, 2017. (Photo: Diego M. Radzinschi)


During his 2005 confirmation hearing, Chief Justice John Roberts Jr. famously likened his role to that of a baseball umpire, testifying that “it’s my job to call balls and strikes and not to pitch or bat.”

The sports analogy served as a charming, accessible—and widely reported—window into Roberts’ judicial philosophy. Five years later, Judge Neil Gorsuch—now President Donald Trump’s nominee for the U.S. Supreme Court—deployed a different sports analogy to explain why he was upholding a federal labor board’s decision.

Gorsuch chose football.

Gorsuch, a judge on the U.S. Court of Appeals for the Tenth Circuit, was weighing a National Labor Relations Board case that involved a union that was accused of unfair practices in persuading a construction company to fire a worker who hadn’t paid union dues. The labor union and employee gave conflicting accounts. But the NLRB’s in-house judge found the employee credible and ruled against the union.

Gorsuch, as he looked at the case, said he found common ground with the replay booth official who’s called on to review a call that is challenged on the field.

“In this respect, our job is something like the role of the instant-replay booth in football: the call on the field presumptively stands and we may overturn it only if we can fairly say that no reasonable mind could, looking at the facts again, stand by that call,” Gorsuch wrote in the case Laborers’ International Union of North America v. NLRB. “So it is that we, like the instant-replay official, often affirm decisions that we might not have made ourselves.”

Related: Gorsuch is No Conservative Lapdog on Employment Front


As the battle over his confirmation plays out, Gorsuch’s opinions, often written vividly, will be mined for clues into how he might rule on cases in the Supreme Court. Already, a portrait has emerged of a judge with an eloquent, clear and occasionally fun writing style who believes in judicial restraint.

On Tuesday, as he thanked Trump for the nomination, Gorsuch addressed the topic of judicial restraint and said he looked forward to the confirmation process. He described the U.S. Senate as “the greatest deliberative body in the world.” (He began meeting with senators on Wednesday.)

“I respect, too, the fact that in our legal order, it is for Congress and not the courts to write new laws. It is the role of judges to apply, not alter, the work of the people’s representatives,” Gorsuch said in his remarks at the White House. “A judge who likes every outcome he reaches is very likely a bad judge—stretching for results he prefers rather than those the law demands.”

Contact C. Ryan Barber at cbarber@alm.com. On Twitter: @cryanbarber

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