Bench Memos

Law & the Courts

American Bridge: Too Stupid for Words—Part 2

A follow-up to my post from yesterday.

Skimming through the back half of American Bridge 21st Century’s incompetent attack on Supreme Court nominee Neil Gorsuch, I’ll highlight a few more blatant distortions and bloopers that signal the dismal quality of the work product. (I also note with amusement that American Bridge repeats on page 56 the same gaffes from pages 10 and 14 that I discussed yesterday.)

1. Under the heading “Concussions” (p. 66), American Bridge writes:

Neil Gorsuch Affirmed The $1 Billion NFL Concussion Settlement. According to Star-News, “Last year, he joined two 3rd Circuit colleagues in affirming the $1 billion settlement of NFL concussion claims, rejecting complaints that men with depression and mood disorders were left out of the deal.” [Star-News, 1/25/17]

Oops. Really bad copy-and-paste job, guys. The opinion that American Bridge is discussing is one that Third Circuit judge Thomas Hardiman joined. (Here’s the news article it refers to.) Gorsuch had nothing to do with it. That reference to “two 3rd Circuit colleagues” might have clued you in. Speaking of concussions ….

2. In a heading (p. 58), American Bridge asserts (in bold):

Gorsuch Ruled that A Man Who Shot Two People But Only Fired His Gun Once Could Be Tried For Two Counts Of Using A Firearm To Commit A Violent Crime.

I’m not entirely clear why American Bridge, given its antipathy to gun ownership, would object to such a ruling. Indeed, the initial Tenth Circuit panel opinion, authored by Obama appointee Scott Matheson, reached just that result.

But if American Bridge could read and understand the newspaper article it quotes, it would discover that its account of Gorsuch’s en banc majority opinion in United States v. Rentz is entirely backwards. Gorsuch—joined by, among others, Clinton appointee Carlos Lucero and Obama appointees Robert Bacharach and Nancy Moritz—“ruled that the second charge should have been dismissed” because the statute was unclear and the rule of lenity operated to the benefit of the defendant.

3. American Bridge spends a full page (pp. 56-57; see also p. 10) castigating Gorsuch for Hawker v. Sandy City Corp., which held that a police officer did not use excessive force in violation of the Fourth Amendment when he used a twist lock to constrain a combative nine-year-old. In a heading, American Bridge attributes to a “Gorsuch Opinion” the proposition that “‘the disrespectful, obdurate, and combative behavior of that nine-year-old child’ was ‘equally regrettable’ to the officer’s actions.”

But what only the careful reader will discern is that Gorsuch didn’t write any opinion in the case and that Clinton appointee Carlos F. Lucero concurred in the panel’s disposition (even as he wrote separately to express his disagreement with circuit precedent). American Bridge’s strange clipping of the passage from Judge Terrence O’Brien’s opinion (which Gorsuch joined) seems designed to obscure that O’Brien forthrightly stated, “It is regrettable that a police officer feels a need to resort to physical force, handcuffs, and arrest in order to gain control of and reason with a nine-year-old child.”


The one conclusion that you can fairly draw from the American Bridge report is that if David Brock’s gullible donors were paying for serious research, they’ve been ripped off. 

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