This is the final installment in a three-part series on Judge Neil Gorsuch’s cyber-related decisions from the Tenth Circuit.
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This is the second part of a three-part series on Judge Neil Gorsuch’s handling of cyber issues. In this collection of cases, Judge Gorsuch identifies the uniqueness of computer searches and the accompanying safeguards, and examines potentially faulty databases.
Computer Searches—Timeliness and Particularity
Writing with a storyteller’s prose, Judge Neil Gorsuch’s knowledge about cyber issues leaps off the page. From explaining file or operating systems to evaluating the credibility of databases, he often deeply engages with the technology at issue—unless, that is, it was not plead, preserved, or supported with more than minimal proof. Reading his cyber-related cases as a whole, he seems to respond to detailed, creative, and thorough lawyering—opting to engage fully with cyber issues when they are teed up accordingly.
The reception to Judge Neal Gorsuch’s nomination to the Supreme Court has largely overlooked two attributes: 1) Judge Gorsuch’s compassion for the unpopular and vulnerable, and 2) his sense of connection between regard for disfavored groups and respect for the separation of powers. In the latter sense, Judge Gorsuch echoes his former boss, Justice Kennedy—a kinship obscured by the understandable tendency to compare Judge Gorsuch with the late Justice Scalia. However, senators should question Judge Gorsuch closely on a qualified immunity decision, Kerns v.
Neil Gorsuch is an eminent jurist who is undoubtedly qualified to be an Associate Justice on the Supreme Court. So too is Merrick Garland. In the law of the jungle that now governs the confirmation process, where principle is absent and power politics alone is what matters, Gorsuch will likely make it to the Supreme Court for the same reason that Garland did not: The Republicans controlled the Senate last year when Obama was President, and continue to control it now when Trump is President. Elections have consequences and the Democrats lost the key ones.