by John Greenya
“I took his seminar in federal jurisdiction, a course in which we read the Supreme Court advance sheets, and then discussed the opinions—this was the anti–New Deal court—and, as I said, he took a shine to me. He chose [all] the Brandeis law clerks, and the Cardozo law clerks every third time.
“The year I got out of law school, 1935, Cardozo had the second year of a clerk from Yale, so Frankfurter had me work for Ben Cohen and Tom Corcoran [two of the most important of FDR’s brain trust of New Deal lawyers] from ’35 to ’36, and then appointed me in 1936, and I remained until Cardozo died in ’38.
“The Supreme Court clerk of today [1992] would hardly recognize the job.” As Rauh puts it, “The relationship in those days, when there was one clerk, while now there are four [to each justice], was totally different. I was Justice Cardozo’s son for two years. It had nothing to do with whether I was a good lawyer or a bad lawyer, it was that his life so totally revolved around the Court that he needed a prop. He didn’t need me for any legal help—God knows he was self-sufficient—but he needed someone for just companionship. It was a beautiful relationship.
“Cardozo, you have to realize, was by this time totally lonesome. His father was a Tweed Ring judge in New York City who had to resign in disgrace, and the story always was that Cardozo had devoted his life to making the name honorable again. It was common knowledge, but I don’t know if it was true or not because I never got close enough to him to talk to him about it.”
In those days the judges’ conference was held on Saturday afternoon, and at 7:00 p.m. the chief justice, Charles Evans Hughes, would make the writing assignments. Rauh still has a vivid memory of the first conference during his time as a clerk.
“I missed the first one! I had gone home. It was Saturday afternoon and we worked six days, and I’d gone home mid-afternoon. So when I walked in Monday morning, there was something he said that indicated he would have been glad to have had me there . . . . And so I never missed another one. But when I walked in Monday morning he had a draft of the opinion. Cardozo’s apartment at 2101 Connecticut Avenue [still a very distinguished Northwest Washington address] had long, long hallways, and they were all lined with bookcases filled with the Supreme Court, federal, and New York opinions. He knew those very well. What he would often say to me was, ‘Mr. Rauh, I have put in the Supreme Court, the federal, and the relevant New York cases. Would you get some from New Mexico or someplace out there so I don’t look so parochial?’ ”
At one point Cardozo told his law clerk that he thought he had once read, somewhere, that there had been head taxes in the Colonies. He asked him to check it out. “That was the only hard job I ever had. I went to the congressional law library and I asked somebody in a position of knowledge what to do, and he took me into the dustiest room I’d ever seen, I don’t think anybody had been in it for years. It had all the statutes of all the Colonies. The dust was as thick as could be, and I looked like a mine worker when I got out of the place. But Cardozo had been absolutely right. I got the statutes and the citations, and he was gleeful!”
Rauh pauses and laughs. “But then, whatever you did, he praised it—you just couldn’t do anything wrong—he was just the most generous, warm man.”
“IF YOU ASKED, ‘DID you ever write an opinion?’ the answer to that would be, ‘Hell, no.’ If I got a sentence or three words in an opinion, I thought I’d done a day’s work. He wrote them all, and he wrote them between Saturday night and Monday morning.”
When Rauh was a clerk the pay was, as he puts it, “the munificent sum of $2,600 a year.” In 1992 when this article was written, Rauh said, “While the workload is staggering, the clerks (who make $38,861 a year) do get together for the occasional ‘happy hour.’ ”
In Rauh’s day there was little of that collegiality. “The Supreme Court was in a temporary turmoil, as President Roosevelt tried to thwart the high-court foes of his New Deal legislation by adding up to six more justices—one for every justice who refused to retire at age 70. I probably had the best seat in America for the court-packing plan.”
In 1938, following Cardozo’s death from heart problems, FDR appointed Felix Frankfurter to the Supreme Court. After years of choosing clerks for others, Frankfurter now had to choose one for himself. As his first law clerk, he chose his former student Joe Rauh.
“It was midyear, and it wasn’t easy to find the right clerk,” says Rauh, “and I told Ben Cohen to tell the justice—as it would have been arrogant to tell him myself—that if he really wanted someone to take it for the interim period, why, I would be glad to. It was some convenience to him to have somebody who knew his way around the Court.
“Eventually, there were two, three, four clerks for each justice, and pretty soon the thing became different. But while I was there, there was still only one clerk.”
The next former Supreme Court clerk I interviewed for my 1992 article was Karen Hastie Williams, who has a lot of firsts on her resume. One of the most intriguing items is that she was a clerk for her own godfather, who happened to be Thurgood Marshall.
“I was born right here in Washington, D.C. I spent my first years here, and then went down to the Virgin Islands when my father became governor of the Virgin Islands, and from there to Philadelphia when he was appointed to the Third Circuit. I went to college in Maine, Bates College, then worked my way back down the East Coast, spending a year in Boston in graduate school at Tufts’ Fletcher School of Law and Diplomacy, and decided I’d see what the real world looked like and worked for two years in New York at Mobil Oil Corporation. Next I came down to Washington and then decided I would stop fighting it and go to law school, and went to Catholic University Law School here, and then went from CU to clerk first for Judge [Spottswood] Robinson on the District of Columbia Circuit Court and then for Justice [Thurgood] Marshall,” who happened to be her godfather. In 1992 she was a partner with the office of Crowell & Moring.
Williams recalls that when Judge Robinson made her one of his clerks, he told her, “ ‘Now if you don’t mess up, I can recommend you to Thurgood,’ and I said, ‘Oh God, he’d never hire me; I know him too well.’ So when TM called me and said, ‘Well? Are you going to come and work for me, or am I going to have to go out and find another law clerk?’ I said, ‘If you think you can stand having me work for you.’ And he laughed and said, ‘I’m tough!’
“I think everyone thought, ‘You know him so well, you’re his goddaughter, he’s going to be easy on you.’ And I said, ‘No, I don’t think so. I know him well enough to know that he’s going to be as rough on me as he is on everyone else. He wants to toughen me up, and I want to do the best possible job I can for him.’ ”
She was right. “TM” was an equal-roughness employer. “It was very different clerking for him and being in that relationship, different than the family relationship we’d had before. He was very demanding. He wants his clerks to really push the edge of the envelope, if you will, in terms of applying precedents, of looking for new ways to attack problems, and I think the real legacy of the Marshall era was his humanizing of the law.”
Williams, who calls her Supreme Court clerkship simply “a credential I prize,” says of Justice Marshall, “He imbued his clerks with the sense of looking at the way issues impact people. Whether it was a state regulatory issue or a tax issue or a civil rights issue, it was the human impact involved. And I think that is the legacy of the decisions he wrote. I think he viewed his dissents as writing for history . . . . There was a major shift on the court from the Warren years through the Rehnquist-Scalia years when it was clear that he would not be writing for the majority; that never slowed him down, in terms of the intellectual rigor and vigor that he wanted his clerks in the first instance, and himself in the second, to put into the opinions. He felt very strongly about the leadership potential of the Supreme Court.”
For Williams, the main point was her professional association with “TM.” “The thrill of the clerkship,” she says, “was working for some
one who had devoted his whole life to the law.”
ANOTHER FORMER SUPREME COURT clerk interviewed for my Washington Lawyer article, which was published one year before Neil Gorsuch worked as a Supreme Court clerk, was thirty-five-year-old Brian Martin, who clerked for Chief Justice Warren Burger in 1984–85.
At the time I interviewed him, Martin was of counsel to Barnes and Thornberg, an Indianapolis firm with a Washington, D.C., office. But at the time of the interview, Brian Martin did not work in either Indiana or the District of Columbia. Instead, he had carved out an ideal, and for him idyllic, situation: He lived and worked (mostly writing appellate briefs) on a sparsely populated island off the coast of Maine.
Martin said he didn’t know of another firm that would have agreed to let him run his Washington-Indianapolis law practice from his home on Peaks Island, Maine, and he was most happy when Barnes and Thornburg did.
“I have an office in my home, and I have my own computer equipment and modem to call in to the firm’s computer in Washington and in Indianapolis. In the morning I turn on the machine and check my messages; I have a fax machine with a separate line, and I have a secretary in Indianapolis. If you’re in Indianapolis or Washington, all you have to do is hit three numbers on your phone, and it’ll ring in Maine. In big firms now, you can be on a different floor, and not really know who’s upstairs, right? So if someone wants to get in touch with me, it’s just like I was on another floor. I’ve been doing this for a year and a half, and it’s worked out wonderfully.”
Martin said that contrary to what some people may think, a clerk’s—or potential clerk’s—politics rarely determine whether he or she gets the job. But what if the belief involved a social, legal, religious, or political issue such as abortion—would that change things?
“I don’t think so. If you were talking to the justices, they would probably say, ‘I have views on abortion, but my law clerk doesn’t need to have views. I need to have someone I can trust who’s smart and can keep secrets and that sort of thing.’
“A lot of the work,” says Martin, “. . . is reviewing petitions for cert. At that time there were six justices who pooled law clerks, in the sense that one of the law clerks from those six justices would review the cert petition, the brief in opposition, and write a memorandum describing the case, the parties’ arguments, and a section of legal analysis, which may also include a discussion of whether the issue’s important.”
As with any job, there were rituals, and they varied according to the justice involved. Martin says that while Justice Harry Blackmun had breakfast with his clerks almost every day, the Burger clerks had a quite different ritual. “On Saturdays, the Chief tended to make our lunch. The chief justice has a small kitchen in his chambers. He might make soup, or bring leftovers from home. So, if I was not working, my co-clerks would call me and say, ‘Brian, get in here, the Chief’s making lunch.’ ”
After my article ran, Brian Martin contacted me to say that he’d received a good-humored note from the retired chief justice, who denied that he had ever brought in “leftovers” for his clerks to eat. Everything, he said, was freshly made and served for the first time.
Chapter Four
* * *
LOVE AND MARRIAGE
NEIL WENT TO OXFORD TO GET A PHD . . . AND CAME BACK WITH A WIFE AND A HORSE.
—Gorsuch friend David Jarden
Reports of the initial meeting between Neil and Louise, his future wife, usually say it was on a blind date, but a few others call it a meeting at a party. However, on March 18, 2017, Associated Press reporters Nancy Benac and Mark Sherman told a somewhat different story.
“It’s poker night in a row house on Cranham Street, Oxford, England,” they wrote, “and Neil Gorsuch, studying for yet another degree, is feeling down. His housemates decide that what Gorsuch needs is a girlfriend. Accounts differ on whether it was a dare, goading, or a gentle prod, but Gorsuch phones a woman he’d clicked with during a school dinner more than a year earlier—and she doesn’t remember him. Awkward.
“That 1994 phone call may be one of the few times that Gorsuch . . . didn’t immediately stand out from the crowd. [Nonetheless] Louise Burletson agreed to go out with him anyway, and ultimately married [him].”
GORSUCH WAS BACK IN England to finish his dissertation, and, whatever the exact story was, he in fact met and dated an attractive brunette named Marie Louise Burletson, also an Oxford graduate (degrees in both history and philosophy). He was getting his PhD in law and she was in graduate school studying business. Neil soon learned that Louise shared his love for the outdoors, animals (she’d been a member of the Oxford equestrian team), and laughter, and the early dates turned into a romance.
In 1996, they were married in St. Nicholas’s (Protestant) Church in Louise’s hometown of Henley-on-Thames, which is about forty miles from London. One tourism website proclaimed it one of the most beautiful towns in England, noting that the Times of London voted the town “one of the best places to live in the English countryside.”
Louise was born in 1968 (one year after Neil) to Prudence and Bryan Burletson. She was christened at Hurley Church, raised in the Church of England, and attended the Rupert House School in Henley, St. Mary’s, Wantage, and the Abbey School in Reading.
As the AP story said, “Though Neil Gorsuch swept Louise away from the UK and far from her family—her parents and older brother, Richard, still live across the pond—her family immediately took a liking to her future husband . . . . For the Burletson family, Neil was welcomed from day one.” Louise’s father told the local paper that Neil was “always a loving and totally supporting boyfriend [who] rapidly became very popular with everyone he met.
“It also helped, her father noted, that Gorsuch ‘has always been a great anglophile and a major fan of Winston Churchill.’
“In 1996, the family had moved to the United States and Louise settled into the life of a young wife and mother in the D.C. suburb of Vienna, Virginia. She missed the open countryside of her youth back in England, and when her husband was made a federal appellate court judge by President George W. Bush in 2006, she looked forward to living in Colorado. They settled in Boulder, a picturesque city 25 miles west of Denver at the base of the foothills of the Rocky Mountains, and she quickly readopted her outdoor life style.”
In 2017, Louise Gorsuch’s friend Katy Fassett told Fox News, “My favorite time spent with Louise is running in the open space with our five dogs while she recounts hilarious anecdotes that make seven miles feel more like two . . . . [S]he embraced the backcountry lifestyle in Colorado.” The article continued: “The family raised horses, chickens and goats . . . . But her friends say that while she loves the backcountry, she can quickly adapt to the hustle-and-bustle of Washington, D.C.”
“The wonderful thing about Louise,” says Michael Trent, a longtime friend of Judge Gorsuch and who was best man at his wedding, “is that she can be just as comfortable looking beautiful at the White House or in her wellies, shoveling horse manure by the barn.”
That Neil Gorsuch remains mindful of how much his British wife gave up for him was evidenced by the fact he planted a rose garden for her in Boulder so she could enjoy her favorite flower, and by this statement he made before the Judiciary Committee: “We started off in a place very different than this one, tiny apartment, little to show for it. And when Louise’s mother first came to visit, she was concerned by the conditions, understandably. As I headed out the door to work, I’ll never forget her whispering to her daughter in a voice I think intended to be just loud enough for me to hear: ‘Are you sure he’s really a lawyer?’ ”
THE READER IS CAUTIONED not to read too much into this fact, but in 1996, when Neil Gorsuch married Louise Burletson, his hair was still dark, as is clearly evident from the wedding pictures. In the less than two decades since the nuptials, in which he went from Supreme Court law clerk to attorney in private practice to public servant to federal appeals court judge, the original brown has given way, e
ntirely, to a premature grayish white. His wife, on the other hand, despite leaving her homeland to raise two daughters in the United States, and, once in America, move from the East Coast to the West, still closely resembles her wedding photos.
The couple’s first daughter, Emma, was born in Colorado in 1999, and their second, Belinda, whom they call “Bindy,” two years later.
FOX NEWS REPORTER KRISTINE Kotta, who profiled the couple for an April 20, 2017, story, wrote:
The British native comes from a religious upbringing and holds degrees in both history and philosophy. She met her future husband while she was attending graduate school at Oxford. He was a law student there and they met on a blind date in 1995 . . . . Toward the end of his remarks [in the Supreme Court confirmation hearings] that day, Gorsuch turned to his wife, who was behind him and said: “To my wife, Louise, and my daughters, Emma and Bindy, thank you for your perseverance and your patience, your courage and your love. I simply could not have attempted this without you.”
ONE GORSUCH RELATIVE, MARGARET Sampson Gorsuch, Neil’s father’s second wife, and since 2002, his widow, did speak to the press, but not the American press. On February 3, 2017, the Daily Mail, a British paper, ran a story entitled “Supreme Court Pick Neil Gorsuch’s Family Breaks Silence,” which began:
The stepmother of President Trump’s Supreme Court pick toasted the news of his nomination with champagne and pizza, saying he will do a “wonderful” job. Margaret Gorsuch, 83, of Denver, Colorado, has known stepson Neil since he was a teenager, and was married to his lawyer father David until his death 15 years ago. Gorsuch’s parents divorced in 1982 and his mother Anne also went on to remarry rancher Robert Burford. He died in 1993, and Anne passed away of cancer aged just 62 in 2004.