On Tuesday evening, President Trump nominated Tenth Circuit Judge Neil Gorsuch to the Supreme Court. If confirmed, Gorsuch would fill the seat left vacant for nearly a year after the death of Justice Antonin Scalia last February. Just 49 years old, Gorsuch would be the youngest Supreme Court justice since Clarence Thomas joined the Court in 1991. After graduating from Harvard Law School, Gorsuch clerked for Supreme Court Justices Byron White and Anthony Kennedy. He worked for Kellogg Huber, a boutique litigation firm representing mostly corporate clients, before he was nominated to the Tenth Circuit Court of Appeals by President George W. Bush in 2006.
The nomination sets up a potentially fierce battle with Senate Democrats, who still fault their Republican colleagues for blocking Merrick Garland’s nomination. In a statement last evening, Senate Minority Leader Chuck Schumer insisted that Gorsuch receive at least 60 votes for his confirmation and argued that Gorsuch “has repeatedly sided with corporations over working people, demonstrated a hostility toward women’s rights, and most troubling, hewed to an ideological approach to jurisprudence that makes me skeptical that he can be a strong, independent Justice on the Court.”
Gorsuch’s views on the False Claims Act and whistleblowers more generally are not yet clear. He has presided over at least one FCA case, United States ex rel. Boothe v. Sun Healthcare Group, Inc., where the Tenth Circuit panel held that courts must assess the FCA’s public disclosure bar “on a claim-by-claim basis, asking whether the public disclosure bar applies to each reasonably discrete claim of fraud.” The upcoming confirmation battle may further reveal Gorsuch’s stance towards whistleblowers.
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