by John Greenya
Classmate Keith Boykin knew and respected both men, but, “as a budding progressive activist in the Black Students Association,” has stronger recollections of the liberal Obama. “But what Boykin does recall about Gorsuch is that, while ‘some conservatives there were very outspoken in a negative way to me, he was not one of them. It was a tense atmosphere on campus, a polarized environment, there were big issues being fought over, like lack of diversity in the faculty and the new dean at the time [Robert Clark] was very conservative and pro-business,’ ” Boykin said. The Guardian concluded, “So Gorsuch was not amongst the loud anti-liberal provocateurs, but he was unmistakably, staunchly conservative.”
Another Harvard Law professor, Charles Fried, who had taught Obama, knew both men. As the faculty advisor of the Federalist Society at the university, he knew Gorsuch as a prominent member. “The Federalists later morphed to include lawyers and judges and such but it was a Harvard Law thing at the time with a charter declaring itself conservative, libertarian and, specifically, moderate—it was everybody but the left, basically . . . . Gorsuch has been nicknamed Antonin Scalia 2.0 as a supposed reflection of his vivid style and staunch conservatism.”
Professor Fried noticed that not only were Gorsuch and Obama often linked in media accounts as their respective careers progressed, but so were Neil Gorsuch and Antonin Scalia. Professor Fried commented that both of the jurists wrote well, but then added, “[There] is not a sarcastic or aggressive remark from Gorsuch.” Fried also pointed out that the two men are of opposite opinions on the so-called Chevron deference, “which can easily come into play in the administration of immigration, health, or environmental laws, for example. Scalia firmly believed federal government agencies have the overriding power to interpret statutes and the courts should ‘greatly defer’ to that, he said. ‘Gorsuch thinks that’s wrong. And that is ominous,’ ” said Fried.
Charles Fried also touched on the big open question: Would Neil Gorsuch vote to overturn Roe v. Wade? (One of the main reasons the question is open is that in his ten years as an appellate judge, Gorsuch did not rule on any cases that were directly related to the landmark decision that gave American women control over their own bodies.)
The same Guardian article quoted Professor Fried as saying, “I would suspect [Gorsuch] would join opponents [of Roe v. Wade] that have chipped away at the edges of the abortion right. Maybe it will be a case of ‘you have the right but you may not be able to get [a termination] anywhere’ because of all the regulatory hurdles,” said Fried. “Having said that, Texas tried that and the Supreme Court reversed it,” he added.
THE LEGAL CONCEPTS OF originalism and textualism in regard to interpreting the Constitution were frequently mentioned in the Gorsuch confirmation hearings. Briefly, originalists believe that the words of the Constitution at the time it was adopted should govern its application and interpretation today. Those opposed to originalism believe that questions are to be answered by using all available knowledge of both the past and present, including especially scientific knowledge that was not known or believed at the time the Constitution was written.
Textualism, often called a “close cousin” of originalism, is commonly defined as a belief that a law should be interpreted based on the plain meaning of its terms—and not on the intent of the legislators who passed it.
The late Justice Scalia is often called both an originalist and a textualist, but often stated that he was an originalist. Justice Gorsuch is also considered, both by himself and by others, an originalist, but not as doctrinaire as Scalia. At the time of the Gorsuch hearings, Robert Barnes, the legal reporter for the Washington Post, provided a helpful explanation of these often misused terms:
Like the man whose seat he’d assume, the late Justice Antonin Scalia, Gorsuch is a proponent of originalism—meaning that judges should attempt to interpret the words of the Constitution as they were understood at the time they were written—and a textualist who considers only the words of the law being reviewed, not legislators’ intent or the consequences of the decision.
Critics say that those neutral considerations inevitably lead Gorsuch to conservative outcomes, a criticism that was also leveled at Scalia.
The Center for the Study of Constitutional Originalism at the University of San Diego School of Law defines it as “the view that the Constitution should be interpreted in accordance with its original meaning—that is, the meaning it had at the time of its enactment.”
But I think University of Chicago law professor William Baude, an originalist scholar and former clerk for Supreme Court Chief Justice John Roberts, perhaps has the pithiest definition. “Baude defines it as ‘the view that law laid down by the framers in the Constitution remains binding until we legally change it, such as through the amendment process.’
“ ‘Or differently,’ he said, ‘that the words in the Constitution have the same meaning over time, even if modern circumstances change, and even if we wish the words meant something else.’ (Emphasis added by me.)”
DURING HIS LAST TWO years of law school, a period marked by sit-ins outside the dean’s office and inside the library and signs reading “Diversity Now” and “Homogeneity Feeds Hatred,” Neil Gorsuch belonged to the Lincoln’s Inn Society, a social club, and lived in its handsome Victorian home located off campus.
According to the Boston Globe, at one point, after neighbors complained that its loud parties resulted in leftover trash and parking problems, “He and other members of the Lincoln’s Inn Society devised a ‘management plan’ to curb the rowdy behavior, while arguing the whole kerfuffle was overblown.”
“ ‘There are only six to eight parties a year,’ Gorsuch assured the student newspaper, the Harvard Law Review, in November 1990. ‘The Inn is more of a place to hang out.’ ”
Difficult as it may be to imagine the (mostly) somber and serious Neil Gorsuch of the televised nomination hearings “hanging out,” on those rare moments when he took time from the book work, Gorsuch could be found shooting pool or lifting weights. According to the Globe story, “Twenty-six years later, classmates still describe Gorsuch . . . as more congenial than confrontational, even as he stood out as a committed conservative on a campus full of ardent liberals.”
“Neil was among a small and relatively close-knit group of political and judicial conservatives on what was otherwise a very liberal campus, but he was not a controversial or hard-edged member of that group,” said Brad Berenson, also a member of the class of 1991, who told the Globe, “He was pretty well respected across the board and really more a reserved and scholarly type that got along with everybody quite well, in a really politically divisive time.”
But Gorsuch had other concerns on his mind, classmates said. He and his friends supported the Gulf War and term limits in Congress. And if the talk turned toward the lack of diversity on the faculty, they wanted to see not only more minorities but also more conservatives.
“ ‘The conversation I recall was: How can we have increased diversity of all perspectives?’ said Ken Mehlman, a fellow member of the Lincoln’s Inn Society who went on to become chairman of the Republican National Committee and George W. Bush’s campaign manager in 2004.
“Adam Charnes, another law school friend, described Gorsuch as unfailingly polite and humble in a class of sharp-elbowed overachievers. ‘He was generally conservative, but certainly not a political firebrand of any sort,’ Charnes said. ‘He seemed to project sort of a western, laid-back image.’ . . . But friends said Gorsuch was not the one blasting music at all hours. ‘Neil was not any sort of a wild man on campus or in the years thereafter,’ said Berenson, who served in Bush’s White House. ‘He’s a straight, temperate guy.’ ”
“Bob Kroll, a fellow member of the Lincoln’s Inn Society, described Gorsuch as less irascible than his classmates and more low-key—like that other famous member of the class of 1991. ‘He had such a thoughtful manner, and he would weigh the issues in a way I found so insightful and so impress
ive,’ Kroll said. ‘I kind of felt that way about Barack Obama, too.’ ”
IN HIS NOMINATION ANNOUNCEMENT, President Trump said Gorsuch had worked at the Harvard Prison Legal Assistance Project and Harvard Defenders Program. In the next month, opponents of the nomination, people and publications alike, searched for anything to disqualify or discredit Neil Gorsuch, and his law school pro bono work became the subject of one of these attempts.
“There’s something weird about Neil Gorsuch’s history at Harvard,” proclaimed an article in the Boston Daily (an offshoot of the Boston Globe) which credited the Wall Street Journal “One big chunk of it—a part that makes him seem like a really nice guy—isn’t adding up.” The story said, “While he was a law student, he claims to have volunteered his legal expertise to help the less fortunate via the Harvard Prison Legal Assistance Project and Harvard Defenders. But the problem is, almost no one remembers him doing so.”
But after that, the story dropped from sight. In the end, it turned out to be, to borrow the word used to describe the incident regarding loud parties at the Lincoln’s Inn, a “kerfuffle.”
A month later, a group of Gorsuch’s law school classmates, of both political bents, signed a letter endorsing his nomination. It read, in part: “We attended law school with Judge Neil Gorsuch—a man we’ve known for more than a quarter century—and we unanimously believe Neil possesses the exemplary character, outstanding intellect, steady temperament, humility and open-mindedness to be an excellent addition to the United States Supreme Court . . . .
“Judge Neil Gorsuch,” it continued, “is a person for all seasons. For Republicans, Neil personifies a disinterested philosophy that respects judicial modesty combined with compassionate appreciation of the lives impacted by his decisions. For Democrats, he is a reasonable, qualified, intelligent person who will give each case fair and impartial consideration on its merits with sensitivity to our nation’s history, values, aspirations and constitutional traditions. For all Americans, he is a person of integrity who respects the rule of law and will ensure that it applies equally to all.”
One of the letter’s signers was a well-known Democrat, Norm Eisen, former ambassador to the Czech Republic, who had also been special counsel for ethics in President Obama’s White House.
On April 4, three days before Gorsuch was confirmed by the Senate, there was another charge that also implied dishonesty on the part of the nominee. Politico, a political website that in the past has been accused of having a Republican bias and then later just the opposite, had consistently opposed the Gorsuch nomination. Its story, headlined “Gorsuch’s writings borrowed from other authors,” charged that passages in Gorsuch’s 2006 book (The Future of Assisted Suicide and Euthanasia) “read nearly verbatim to a 1984 article in the Indiana Law Journal.” It also accused him of plagiarizing passages from a seventeen-year-old academic article, stating, “Gorsuch borrowed from the ideas, quotes and structures of scholarly and legal works without citing them.”
According to the article and other commentators, Gorsuch had cited the original sources used by the authors of the articles in question, but did not attribute them to the authors in whose works he had apparently found them.
The White House quickly quoted a set of plagiarism experts who said, in effect, no big deal, and the magazine countered with different experts who said the opposite. In the end, it appeared that, depending on which expert one chose to favor, while it could be considered plagiarism at one end of the definitional spectrum and just sloppy writing at the other, the issue did not appear to reveal a major flaw in the judge’s character, especially in light of the very great amount of writing Gorsuch had done from 2006 to 2017 (during his confirmation hearings he told the committee that he had written or joined over six million words just as a federal judge).
In the end, like the issue of his pro bono work at Harvard Law School, the charge soon faded from prominence. To borrow a journalistic phrase, “The story did not have legs.”
BASED ON THEIR PERFORMANCE while classmates at Harvard Law, both Barack Obama and Neil Gorsuch, the two undisputed stars of the class of 1991, had offers to clerk for prestigious judges on the federal level. But only one of them accepted.
Barack Obama decided to go home to Chicago and get involved in community service as an organizer. But when he told his girlfriend (Michelle Robinson, also Harvard Law, class of 1988, and later his wife), she was not pleased with his decision. She knew he was in the running for a clerkship with a former congressman from Illinois, Abner (“Abe”) Mikva, the chief judge of the D.C. Circuit, a court—and a judge—famous for supplying clerks to the U.S. Supreme Court. Then and now, a clerk from the D.C. Circuit was all but guaranteed to be a Supreme Court clerk, after which the sky of the legal profession was the limit.
As Staci Zaretsky wrote in the legal blog Above the Law, Barack told Michelle, “If you’re going to make change, you’re not going to do it as a Supreme Court clerk,” or words to that effect. Thereafter in the 1990s, Obama was known in certain legal circles as “the one who got away.” Zaretsky added, “Prior to Judge Mikva’s retirement, 24 of his clerks went on to become Supreme Court clerks, and Obama later awarded him with the Presidential Medal of Freedom.”
IN 1991, AS THE rest of his Harvard Law graduating class rushed off to begin their life’s work, most to join major law firms, and fewer to clerk for judges, Gorsuch was in the latter group. He applied for a position as a Supreme Court clerk. He was hired by his fellow Coloradoan Byron White.
When White retired in June, Gorsuch left for Oxford University, to which he had won a prestigious Marshall Scholarship, named for former secretary of state George C. Marshall. He would study for a PhD in law.
According to the Marshall program’s current website, “Up to forty Scholars are selected each year to study at graduate level at an UK institution in any field of study. As future leaders, with a lasting understanding of British society, Marshall Scholars strengthen the enduring relationship between the British and American peoples, their governments and their institutions. Marshall Scholars are talented, independent and wide-ranging, and their time as Scholars enhances their intellectual and personal growth. Their direct engagement with Britain through its best academic programmes contributes to their ultimate personal success.”
PhD candidates at Oxford take few classes; the bulk of their work is in independent reading followed by tutorial sessions with their major thesis advisor. In Gorsuch’s case that was John Finnis, an Australia-born legal scholar and philosopher who specializes in the philosophy of law. Finnis is known for his strong belief in the doctrine of natural law, which holds that in addition to man-made laws there’s a body of laws that stems from man’s basic nature and that can be discovered by the use of reason. A 1962 convert to Catholicism, Dr. Finnis has been teaching at the University of Notre Dame since 1995.
“Oxford has probably the best philosophy program in the world, and Finnis happens to be one of the giants,” said Leonard Leo, an adviser to Mr. Trump. Judge Gorsuch’s work there “is a pretty significant distinction,” he added.
Some of John Finnis’s views are very controversial. For example, in defending his long-held position against same-sex marriage and same-sex coupling, he once compared them to bestiality.
During the confirmation hearings Senator Dick Durbin (D-IL) asked if Dr. Finnis’s beliefs had influenced Gorsuch’s judicial philosophy. The senator was so persistent in this line of questioning that for the first time in the hearings, the nominee’s façade of calm patience seemed to crack a bit.
“During his Senate confirmation hearing for a Supreme Court seat,” reported Time, “the Colorado judge appeared frustrated when pressed by Democratic Sen. Dick Durbin on the views of his dissertation advisor. The Illinois senator noted that Oxford law professor John Finnis once wrote that European countries were facing ‘cultural decay from reverse colonization’ caused by immigration, comparing the comment to a recent controversial tweet by Iowa Rep. Steve King.
“ ‘I’m not here,’ Gorsuch snapped back, ‘to answer for Mr. King or for Professor Finnis. I’ve had a lot of professors . . . and I didn’t agree with everything they said.’ ”
Durbin wasn’t done. He countered by saying, “This is a man who apparently had an impact on your life, certainly your academic life. And I’m trying to figure out where we can parse his views from your views.”
Gorsuch wasn’t buying: “I think,” he said (“growing visibly agitated,” according to Time), “the best evidence is what I’ve written. I’ve written or joined over 6 million words as a federal appellate judge. I’ve written a couple of books. I’ve been a lawyer and a judge for 25 or 30 years. That’s my record, and I guess I’d ask you, respectfully, to look at my credentials and my record.”
AS HIS DISSERTATION SUBJECT, Neil Gorsuch had chosen assisted suicide, a topic much in the news at that time because of the ongoing notoriety surrounding Dr. Jacob “Jack” Kevorkian, the famous (some said infamous) proponent and practitioner of physician-assisted suicide, a practice that Gorsuch had long enjoyed debating with classmates and friends. It was also a topic dear to the heart of John Finnis. Like his advisor, Gorsuch opposed the practice. While Gorsuch did not agree with his former teacher on all issues, on this one they were definitely in sync.
After graduating from Oxford with his PhD, Gorsuch, with a contract in hand from Princeton University Press, turned his dissertation into a book. The Future of Assisted Suicide and Euthanasia was published in 2006, the same year he was named to the federal bench. According to the publisher, “After assessing the strengths and weaknesses of arguments for assisted suicide and euthanasia, Gorsuch builds a nuanced, novel, and powerful moral and legal argument against legalization, one based on a principle that, surprisingly, has largely been overlooked in the debate—the idea that human life is intrinsically valuable and that intentional killing is always wrong. At the same time, the argument Gorsuch develops leaves wide latitude for individual patient autonomy and the refusal of unwanted medical treatment and life-sustaining care, permitting intervention only in cases where an intention to kill is present.”