Gorsuch
Page 3
“What general?” said Watt.
Fielding, who had what Jim Watt recalled as “a scowl on his face like I was stupid,” said, “The attorney general.”
Watt said, “Fred Fielding! You’re telling me that the attorney general had a case similar to mine, and the principle on which you marched me to the end of the plank is not important enough for him to stand on. But it’s important enough for me to stand on and get abused like I’ve been abused?” To which the White House lawyer said, “That’s the way it goes, Jim.”
Watt was able to get out of the executive privilege fight, but before that happened he and his wife were invited to attend a function at the White House. In an interview with this author for Are You Tough Enough?, Watt said, “But one night, while my fight was still going on, my wife and I were in the receiving line at the White House, and the president said to my wife, ‘I appreciate what your husband is doing for me, and I want you to know that I will visit him every Thursday night if he goes to jail.’ We had a big laugh about it. It was funny. I had a commitment: if the president wants me to do this, I’ll walk the plank. But when they sold the principle down the river for the ‘general,’ I would not tolerate it any more. If the president asked me to walk the plank, I would have done it just like Anne did. But the president wasn’t briefed on the truth of the whole situation.”
EARLY ON, THE MEDIA caught the scent of scandal in the Superfund program, and it soon became a frequent and popular subject, with Anne Burford, the outspoken, attractive, and female head of EPA, as the focal point of their stories. To most of the press, Burford was refusing congressional requests for documents because she had something to hide. What they didn’t know, because as a good soldier for Reagan she would not tell them, was that the truth was quite different.
From the outset, Burford had been in favor of giving Congress what it wanted to see (and had discussed this option with her oldest child), but the White House lawyers were so gung ho about preserving the doctrine of executive privilege that they were adamantly refusing her proposals to cooperate with the congressional committees chaired by John Dingell and Elliott Levitas.
Of those lawyers, she later wrote, “The people at Justice behind the push for executive privilege were all presidential appointees who, to be blunt, shared several characteristics: (1) they didn’t have enough to do; (2) they weren’t very good lawyers; and (3) they had tremendous egos.”
So the issue was joined, the battles ensued, and Burford, who wanted to cooperate with Congress and get back to running the EPA, was getting clobbered in the media daily, none of which was lost on Neil.
At one point, she met with John Dingell in an attempt to talk him out of holding her in contempt of Congress for not giving up the papers, and pleaded, “Don’t do this, John. If you do this it’s going to end up like a Greek tragedy,” to which the congressman replied, “Anne, you’re right. It is going to be tragic. You know I’m not after you. You’re just in the way. What you need to do is figure out who your friends are—whether they’re up here, or at the other end of Pennsylvania Avenue.”
Burford’s reply: “I had to make that decision a long time ago, and I can’t reverse it now.”
“Well,” said Dingell, “then you’ll have to live with the consequences.” Which is exactly what happened.
WHILE ALL OF THIS political frenzy was occurring, Neil Gorsuch was aware of his mother’s woes, which became his, but internalized.
IN MARCH 1983, THE ax that had been hovering over Anne Burford’s neck for so long began to fall, and on the fourth, after Burford had given a speech in Denver, she and her good friend Frieda Poundstone and Steve Durham, EPA’s western regional administrator, were relaxing in Anne’s motel room when Durham asked if he could speak to her “in private.” Annoyed that he would not say what he had to say in the presence of Poundstone, she walked into the bathroom. He followed and closed the door.
“Joe wants to see you,” he said.
Burford, who knew only two “Joes” in Denver, one of them being her father, figured the Joe well enough known in the city to be called by just his first name was Joe Coors, and she was right. He wanted to meet with her the next morning in his home, where she had never been before. Even though it was 3:00 a.m. in Washington, she called John Daniel and told him to write a chronology of all the events in her fight with Congress and get on the next plane to Denver.
As Burford later recalled: “The next morning, when they were in the privacy of his home office, the beer baron, eschewing small talk, blurted out, ‘They want you to resign.’ ”
“They, who are ‘they’?” It was all she could think of to say.
“People very close to the president.”
“But why are you doing their dirty work for them?”
With a half-smile he said, “I never could refuse Ronnie anything.”
Thinking quickly, Anne Burford said, “What’s in it for me, Joe? What do I get out of it?”
“You get out,” replied Coors.
“That’s not good enough. Six months ago I tried to get an appointment with the president to offer to step down after the first two years of my term. But I was never able to get in to see him for that purpose. That ‘get out’ deal would have been fine six months ago, but not now. It’s not enough.”
“What do you want?”
For some reason she had the answer ready. “I want three things: I want my people, the people I hired, taken care of—no wholesale firings; I want my legal bills paid; and I want a reappointment to a decent post in this term of this administration.”
He said, “I’ll make sure you get all three of those things.”
When Burford got back to the car, she looked at her watch. The meeting had taken less than half an hour.
IN THE MIDDLE OF this long-running drama, a reporter from the Washington Post called Georgetown Prep and tried to reach Neil Gorsuch “to get his side of the story.” When Anne complained to the reporter’s editor, he asked the reporter about it, and she claimed—either forgetting or unaware that the headmaster had taken her call and jotted down her request—that Neil had called her. As Burford quickly pointed out, seeing that her son’s political views were a mirror image of her own, if Neil had in fact wanted to call a newspaper “to get out his side of the story,” it definitely would not have been the Washington Post.
In the unlikely event that Neil Gorsuch had talked to a reporter, he undoubtedly would not have answered any questions about his feelings, but he might have mentioned what he told his mother when she phoned to tell him she was resigning as the head of EPA. As Anne later wrote, “Neil got very upset. Halfway through Georgetown Prep, and smart as a whip, Neil knew from the beginning of the seriousness of my problems . . . . ‘You should never have resigned,’ he said firmly. ‘You didn’t do anything wrong. You only did what the President ordered. Why are you quitting? You raised me not to be a quitter. Why are you a quitter?’ He was very upset.”
In 2017, the Washington Post reported, “[The] traumatic experience didn’t derail Gorsuch. He became a national champion in debating. And it didn’t sour him on politics. Instead,” said the newspaper, “it made him shrewder and more determined.”
WHEN NEIL GORSUCH ARRIVED on the campus of Columbia University in the fall of 1985, he needed to be both shrewd and determined, because there were major differences between the Ivy League university in Morningside Heights in Upper Manhattan and the Jesuit prep school in Bethesda, Maryland, where he’d been cosseted for four productive years. At Columbia, even though almost two decades had passed, aftershocks of the famous 1968 riots were still being felt.
In the spring of that epochal year, students had protested against the war in Vietnam and the university’s treatment of its neighbors, many of whom were middle- to low-income blacks. There had been a mix of liberals and conservatives in the student body at Georgetown Prep, but at Columbia in 1985 conservatives were few and far between. Nonetheless, young Gorsuch did not hide or temper his views.
That same AP story began with these words: “As a conservative student at Columbia University in the mid-1980s, future Supreme Court nominee Neil Gorsuch was a political odd man out, and he was determined to speak up. ‘It is not fashionable at Columbia to be anything other than a pro-Sandinista, anti-Reagan protester,’ the then-sophomore wrote in a campus newspaper . . . . ‘Only in an atmosphere where all voices are heard, where all moral standards are openly and honestly discussed and debated, can the truth emerge.’ In his college writings, Gorsuch took on many of the most controversial issues of the day.”
Another Columbian who differed with Gorsuch was Jordan Kushner of Minneapolis, then a student activist and now a civil rights lawyer. According to Kushner, while the Federalist Paper—a campus newspaper founded by Gorsuch and two like-minded friends, Andrew Levy and P. T. Waters—may have been centrist, Neil Gorsuch was not.
“He’s good at sounding reasonable,” Kushner told the Associated Press, “but . . . he took really right-wing positions” on the issues on which the two disagreed, such as the Reagan administration’s secret funding—using money raised by selling arms to Iran—of the Nicaragua rebels in their fight against the Marxist Sandinista government.
The prevailing sentiment on Columbia’s campus was to oppose the administration’s actions, but, as he had done at Georgetown Prep, Neil Gorsuch stuck up for President Reagan, defending him in the Iran-Contra matter (though he did fault him for being “indecisive”). Among other hot-button issues during the mid to late 1980s were: whether universities like Columbia should divest their holdings in businesses in South Africa (Gorsuch said the cause was “unquestionably an honorable one,” but warned that divesting could have a negative impact on scholarships and the school’s endowment fund); whether because of their antigay policies the military branches should be barred from recruiting on campus (Gorsuch defended their presence on the grounds of the First Amendment’s free speech guarantees); and whether Columbia’s curriculum should include more female and minority authors (Gorsuch: “If possible, yes”).
AT THE TIME OF his 2017 confirmation hearings, in answer to the request of the Judiciary Committee for a list of his writings, Gorsuch went all the way back to college. As the Denver Post reported, “Gorsuch’s writings include some made while editor of The Morningside Review, a quarterly journal of opinion published by students at Columbia University and founded in 1982. It was launched partly to give a voice to conservatives and moderates on campus, said one editorial. The publication was described by former Gov. Mario Cuomo as harboring ‘stone-age conservatives.’ ”
In one article, Gorsuch attacked the U.S. State Department’s handling of Afghanistan. Gorsuch, a Denver native, also coauthored a piece lashing out at those who joined that period’s boycott of Coors beer over its relations with unions and minority groups.
In 2002, while in private practice, Gorsuch wrote an editorial for United Press International in which he said that in today’s judicial confirmation process, “[There] are too many who are concerned less with promoting the best public servants and more with enforcing litmus tests and locating ‘stealth candidates’ who are perceived as likely to advance favored political causes once on the bench.”
In 1986, newly graduated Gorsuch reflected on the Federalist Paper in another writer’s Spectator article about conservatives on campus. “I’m not sure that conservatism and Columbia can be easily connected,” Gorsuch said. “However, the debate has been opened up considerably, and this is good.”
He, along with his fellow Federalist editors, said something similar—and prescient—a year later. As reported by Politico in 2017: “Gorsuch and his fellow Federalist editors seemingly anticipated future scrutiny of their collegiate work in a Federalist editorial from November 1987. Following the failed presidential candidacy of Joe Biden after plagiarism allegations and the derailed Supreme Court nomination of Douglas Ginsburg for previously smoking marijuana with his students, the Federalist wrote that many students ‘are coming to the realization that one’s actions in college and one’s conduct as a young adult will be examined in relentless detail should one chose [sic] to enter the public sector.’
“We ought not forget there is something vital and useful in the curious, if imperfect youth—something that shall not be stifled,” the Federalist editors wrote.
Neil Gorsuch did not lose his sense of humor while at Columbia. Alongside his graduation picture he added a joke borrowed from Nixon’s secretary of state Henry Kissinger, “The illegal we do immediately, the unconstitutional takes a little longer.”
NEXT CAME HARVARD LAW School, to which Gorsuch had won a Truman Scholarship, a thirty-thousand-dollar grant from a program created by Congress in 1975. “The Truman Scholarship,” says its website, “is a highly competitive, merit-based award offered to U.S. citizens and U.S. nationals from Pacific Islands who want to go to graduate school in preparation for a career in public service. Truman Scholars participate in leadership development programs and have special opportunities for internships and employment with the Federal government.”
In 1975, the year the Truman Scholarships program was founded, Madeleine K. Albright said, “I can easily see tomorrow’s Cabinet members, elected representatives, nonprofit directors—even presidents.”
The former secretary of state was closer to an accurate prediction than she could have realized, for during Neil Gorsuch’s three years at Harvard Law, a young man who also graduated from Columbia University did become president of the United States. His name is Barack Hussein Obama.
While the future president and the future Supreme Court justice attended Harvard at the same time, 1988–1991, Barack Obama had preceded Gorsuch at Columbia by five years. In 1979, Obama had moved to Los Angeles to attend Occidental College, and then transferred to Columbia as a junior. At Columbia, both Obama and Gorsuch majored in political science, but the future president added a specialty in international relations and another in English literature.
Shortly after Gorsuch was nominated, a lengthy article that appeared in the British publication The Guardian pointed up the sharp differences between the two high achievers, the liberal Obama and the conservative Gorsuch. “The campus was a place that was politically divided at the time and there was a lot of sometimes uncivil discussion about jurisprudence and other issues. Barack Obama and Neil Gorsuch were obviously on different sides of those issues,” Bradford A. Berenson, a Boston-based corporate litigator who was one of Harvard Law’s class of 1991 alongside the former president and the new Supreme Court nominee, told The Guardian.
Even though a typical Harvard Law class is a sea of five-hundred-plus ambitious, scholarly faces, Berenson said both Obama and Gorsuch stood out—for some contrasting but also similar reasons.
“They were both well-liked across the ideological spectrum and they were not obnoxious. I enjoyed being around them. Both were reserved, genial and respectful, but with a sense of humor. And they were both conspicuous talents at the time, in terms of legal intellect, but it was very clear then that Barack was a philosophical liberal and Neil was a conservative,
much more straight-laced, a straight arrow,” he said.
According to The Guardian, Harvard Law professor Laurence Tribe called Gorsuch “ ‘a very, very bright judge’ ” who, he also recalled from his university days, was not just learned but “ ‘very personable.’ ” But he knew Obama better, because the future president had been his research assistant.
Professor Tribe, also known as Larry, is a legal celebrity in his own right, having argued thirty-six cases before the U.S. Supreme Court. He has taught constitutional law at “the Law School” since 1968. Supreme Court Associate Justice Elena Kagan was one of his students.
The Guardian reported, “He recalls the young man who became the first black editor of the Harvard Law Review and then America’s first black president as ‘an incandescent intellectual, who was much more articulate than almost any student I have had in over 40 years.’ ” Obama drew attention as one of just a handful of minority students, of course, but Tribe said he was such a distinctive character and intellectual luminary that he would have stood out at Harvard regardless of skin color.”
Upon leaving Harvard, Obama and Gorsuch took divergent paths. Obama went back to the South Side of Chicago to do community organizing, and the conventional Gorsuch went off to clerk on the Washington, D.C., circuit and then for Supreme Court justices Byron White and Anthony Kennedy.
According to The Guardian, “Gorsuch also won a scholarship to Oxford University in 1992 and began his PhD, in a formative trip where he met his British wife and further crystallized his conservative views. In later years, as a rising judge, Gorsuch would go to Tribe for suggestions for bright and independent-minded star students from the law school who would make good clerks for him. ‘The people I can think of that I have recommended in the last 10 years or so have enjoyed working for him a great deal and liked him—and some of them were even liberal,’ Tribe said.”