Gorsuch

by John Greenya

  Margaret told DailyMail.com that she remains close to the 49-year-old and regularly sees the judge and his “lovely” British wife Marie Louise for lunch and at family gatherings.

  Speaking about her stepson, she said: “He’s brilliant, he’s disciplined, he’s handsome, he’s witty—what else do you need to know? His wife is the most beautiful British woman, she’s lovely. The whole family are very pleased with him.” . . .

  [Neil Gorsuch made an equally big hit with his new in-laws in England, Louise’s] parents Bryan and Prudence Burletson. Louise’s father . . . a retired property developer, declined to comment on his son-in-law’s potential elevation. [But the] . . . family are close despite the distance they live from each other, and Gorsuch thanked his parents-in-law for their support in the foreword to his book on suicide and euthanasia.

  THROUGHOUT HIS LIFE, IT has been noticed and remarked upon that Neil Gorsuch makes friends easily and, as his earliest report cards undoubtedly said, “plays well with others.” “Who is Neil Gorsuch?” asked the Associated Press on March 18, 2017:

  Among the answers: On his birthday, his family must watch a Western with him; he runs with his law clerks, instructs them in “the Zen of fly-fishing,” and on the ski slopes, waits at the top to see which of them he’ll have to help get up after a fall; knows the names of the security guards at the courthouse and asks about their families; and, says former clerk Joshua Goodbaum, is the kind of person “who talks about the law for fun.”

  But not everyone thought these traits qualified him to sit on the Supreme Court. Ilyse Hogue, president of NARAL Pro-Choice America, said, “I’m hearing he’s a really nice guy. That’s way too low a bar for a jurist on the highest court in the land.”

  QUITE NATURALLY, THE VIEW from inside the family circle is totally positive. His brother, J.J., a Denver marketing company executive, told the media that his big brother was “always on the brainy side,” and that theirs was a typical western childhood, filled with family trips for outdoor recreation. The AP wrote that “even Gorsuch’s childhood mischief tended toward the intellectual—he once read a book about gambling and put it to use by starting a basement casino for neighborhood kids.”

  Neil and J.J.’s sister, Stephanie, the youngest of the three Gorsuch children, is the director of money transfers for Western Union, where she has worked since 2011. Stephanie is equally supportive of her oldest sibling, but is seldom quoted in the media, preferring to keep her opinion private.

  THROUGHOUT HIS LIFE, NEIL Gorsuch has displayed a facility for making—and keeping—friends. As the Washington Post reported in its long article on him shortly after the president named him as his Supreme Court nominee:

  Gorsuch has also established deep and enduring relationships with liberals he has known since his school days—in some cases the very targets of his pointed attacks. He has won endorsements from gay friends and hired law clerks from the opposite end of the political spectrum. He has argued that the court system shortchanges low-income people and called for making legal services cheaper and courts more accessible. Even the simple writing style of his opinions, which have won wide attention in legal circles, reflects his conviction that the law should be understandable to everyone, lest it favor only the wealthy and well educated.

  In his writings, he has denounced liberals for using court decisions to advance “their social agenda.” But Gorsuch has also refused to be pigeonholed himself, saying, “People do unexpected things. Pigeonholes ignore gray areas in the law.”

  At the time of Neil Gorsuch’s nomination to the high court, grade school friends such as Gina Carbone, Rob Tengler, and Jonathan Brody spoke to the media in glowing terms about their time with him, as did Michael Trent, Thad Ficarra, and Brian Cashman, classmates at Georgetown Prep. At both Columbia and Harvard, Gorsuch made friends who have remained his friends for decades, like law school classmate Phil Berg, now a friend for more than thirty years. Shortly after Berg married his boyfriend, he received a note from Neil telling them that if they were ever in Colorado, his house would be their house.

  According to the Washington Post, “Many of those who knew Gorsuch during his student days noted that he was as affable in person as he was fierce in his writings.”

  Berg said Gorsuch was constantly establishing such connections with others, regardless of their political philosophy: “He would have a real conversation with people from the top professors to waiters and waitresses at a restaurant. He sort of put himself in their shoes,” he said. “He made you feel like you were the only person in the room when he was talking to you.”

  Classmates and acquaintances—from his time in college, law school, and Oxford—uniformly describe him in effusive terms.

  “There are a whole lot of people at Harvard Law School who are interested in talking and want you to think that they’re the most important person in the room,” said Ken Mehlman, his Harvard housemate and a former chairman of the Republican National Committee. “But Neil was very curious about other people and learning what they had to say.”

  Mehlman, like Berg, would later come out to Gorsuch as gay and also recalled the sensitive way he took the news.

  “I would be surprised if any of our classmates had an unkind word to say about him,” said Norm Eisen, a Harvard Law classmate who later became a high-ranking official in Obama’s administration.

  No one who knew Neil Gorsuch in his student days would describe him as a hell-raiser or a rabble-rouser (though his writings while at Columbia were hardly mild). His first boss in private practice, Mark Hansen, once said of him that he “looked like he had never walked against a Don’t Walk sign.” But over the years, by dint of hard work and concentration, he has become a fierce advocate for the principles and ideas he considers important.

  SHORTLY AFTER NEIL GORSUCH was nominated for a seat on the Supreme Court to replace the late Antonin Scalia, liberal commentators wondered if his avowed friendship with several gay people could mean that once on the Court he would also be friendly toward the rights of the LGBTQ community, but Mark Joseph Stern, who covers the law and LGBTQ issues for Slate, threw a columnful of cold water on the idea with his article entitled “Neil Gorsuch Has Gay Friends. Who Cares?” It began: “[T]he New York Times published a very strange story by Sheryl Gay Stolberg titled ‘Gorsuch Not Easy to Pigeonhole on Gay Rights, Friends Say.’ The article notes that Neil Gorsuch ‘. . . has gay friends and is not outwardly homophobic in his interactions with them. Indeed, Stolberg explains at length, Gorsuch is actually friendly with these gay friends, congratulating them on their marriages and inviting them to stay in his guest room. Even better, he lives in Boulder, Colorado—a liberal city!—and goes to a church that ‘welcomes gay members.’

  “ ‘That leads some friends to wonder if his jurisprudence might be closer to that of Justice Anthony Kennedy,’ Stolberg writes, ‘who has carved out a name for himself as the court’s conservative defender of gay rights.’ ”

  Stern disagrees, writing, “This conflation of personal and jurisprudential views is misguided and befuddling. There is little reason to think that Gorsuch’s friendships with gay people will affect his legal views one way or the other. And it is especially unwise, in the run-up to his confirmation battle, to pretend that Gorsuch’s associations will somehow push him toward a more progressive stance on LGBTQ rights . . . .

  “How can we uncover Gorsuch’s genuine beliefs about LGBTQ rights before he is elevated to the bench? Michelangelo Signorile argues that senators must ask him about gay rights, and I certainly agree—but I doubt these queries will yield much useful information. Gorsuch is adept at concealing his beliefs . . . . Do not expect Gorsuch to show his cards when senators ask about gay equality.”

  Stern concludes: “I have no doubt that Gorsuch’s gay former classmates and clerks genuinely see him as an LGBTQ ally. But the fact remains that these amicable associations tell us virtually nothing about his jurisprudence. A review of his past decisions, on the other hand, reveals a jud
ge who is quite skeptical of LGBTQ claims and hesitant to insist that the government be made to respect LGBTQ people’s dignity. These rulings and writings, while relatively scarce, tell us more about his legal convictions than any personal ties possibly could. And they do not give LGBTQ Americans much cause for optimism.”

  WHAT DOES GIVE GORSUCH supporters cause for optimism is their belief in his basic humanity and his gift for listening—sincerely and carefully—to opposing views and the people who hold them.

  Chapter Five

  * * *

  THE PRACTICE OF LAW

  In 1995, armed with a law degree from Harvard, a doctorate in philosophy of law from Oxford, and experience as a clerk for three federal judges (two of them associate justices of the U.S. Supreme Court), family man Neil Gorsuch was about to look for a regular job for the first time since he had been a summer associate while in law school. But the reverse happened. A job looked for him—and he took it. Many who knew him expected he would walk off with yet another prize, this one in the form of a higher-than-average starting salary with a high-profile, nationally known firm, but he surprised them by choosing a two-year-old start-up law firm in the nation’s capital.

  He chose the firm—Kellogg, Huber, Hansen, Todd, Evans & Fiegel—because it had decided to get proactive in the hiring of former Supreme Court clerks, those cream-of-the-crop young lawyers who were just finishing their clerkships and coming on the legal job market for the first time. In the usual course of Big Law business, they would be hired by the large, well-established firms that would pay them above-average salaries and then train them, but slowly, to become the kind of lawyers that gave those firms their excellent reputations. If they made partner (and not all of them would), that would take five to ten years, with the average being around seven.

  The small coterie of Harvard Law–trained partners at the two-year-old firm of Kellogg, Huber, Hansen, et al., decided they would make these highly desirable potential hires an offer they couldn’t refuse—they promised them they would get to do real trial work almost immediately, make partner in just a few years, and, like a top pro ball prospect, be paid a “signing bonus” of one hundred thousand dollars!

  According to founding partner Mark Hansen, “Our sales pitch from the beginning was: ‘You’ll get to do more here than anywhere else, and we’re going to pay you more than anyone else.’ We were very successful in recruiting with that. Neil liked that . . . . That was the hiring strategy from the beginning. We wanted as many of these people as we could get . . . . But we also had to explain that the doors could be closed in six months. The clerk bonus was ‘eye-poppingly bigger than any other firm, and we ruffled a lot of feathers by doing it. But it worked.’

  “Once at Kellogg, Huber, much of Judge Gorsuch’s time was dedicated to the firm’s telecom clients, working on complex regulatory and antitrust matters springing from the breakup of AT&T. In the early 2000s, he also successfully represented a heavily indebted D.C. hospital in a dispute with insurance carriers and was on the plaintiffs’ side in a ‘payday loan’ class action.”

  Another Kellogg, Huber partner, Steven Benz, who helped recruit Gorsuch, told the legal blog Law360 that the firm was unusual in that it represented both plaintiffs and defendants, which meant a broader range of experience for the new hires: “At our firm, Neil experienced what it’s like to litigate a case from start to finish, and he’s lived the difficulties of civil discovery. He’s experienced life in the litigation trenches.”

  “AS A PRIVATE-SECTOR ATTORNEY, Gorsuch could have practiced with any large corporate law firm in the United States, but instead chose a small firm in its very early days—a riskier path, to be sure.” So wrote David C. Frederick, also a partner in the firm that today is called Kellogg, Hansen, Todd, Fiegel & Frederick. Mr. Frederick called Gorsuch “brilliant, diligent, open-minded and thoughtful.”

  In his decade at Kellogg, Huber, Neil Gorsuch represented both plaintiffs and defendants, sued as well as defended large corporations, and represented the U.S. Chamber of Commerce, but also filed and won class-action lawsuits for groups of consumers. But the case that Frederick remembers best is one that Gorsuch “brought” to the firm after he’d left to become a federal appellate court judge in Denver.

  Frederick wrote:

  Some years ago, he called me about a case he had reviewed on the 10th Circuit’s motions docket involving an Arab Muslim incarcerated in a state prison. The guards allegedly called the inmate “9/11” and mistreated him during his confinement. The district court had rejected the inmate’s claim that his constitutional rights had been violated and dismissed his lawsuit.

  Over the phone, though, Gorsuch explained that he thought the plaintiff prisoner might have a valid claim, but couldn’t tell for sure. He asked our law firm to represent the inmate, which I agreed to do so long as a younger colleague could be the principal lawyer on the case and argue under my supervision. Gorsuch agreed and then recused himself from the case to avoid an appearance of conflict. My associate, Janie Nitze, later won a reversal by the 10th Circuit, which reinstated the prisoner’s claims. That man got his day in court because of Gorsuch’s conscientious approach to judging.

  ATTORNEY WAN KIM, A Kellogg, Hansen partner currently on sabbatical, who worked with Neil Gorsuch both at the firm and at DOJ, recalls life at the start-up boutique. “I joined the firm in early 1997”—Gorsuch had been there since 1995—“because the job I’d had at DOJ convinced me I really wanted more courtroom experience.”

  Gorsuch and Kim had taken similar but different routes to arrive at Kellogg, Huber (then, but since 2000, Kellogg, Hansen). After law school graduation from the University of Chicago, Wan Kim clerked for a year for Judge John Buckley of the Court of Appeals for the D.C. Circuit and then went to the Justice Department as part of its honors program, where he was the assistant attorney general in the Civil Rights Division in 2007, when he left to join Kellogg, Huber. Gorsuch came to the firm directly from his second Supreme Court clerkship, the first with Byron White and later with Anthony Kennedy.

  While Kim says that young lawyers at Kellogg, Huber got more trial experience there than did their counterparts at the big well-known firms, he left after two years to rejoin Justice as an assistant U.S. attorney for D.C., where he was guaranteed to get an even greater amount of courtroom work. (Along the way he also served as counsel to the Senate Judiciary Committee.)

  “At that time, the firm did both litigation and telecom, and Neil and I both worked as litigators, and we got along quite well. The practice of law at that law firm was better than I thought it would be coming out of law school.”

  NOT ONLY DID MARK Hansen recruit Gorsuch, but he worked closely with him for the decade Gorsuch was part of the firm.

  At the time of Gorsuch’s nomination to the Supreme Court, Hansen told Bureau of National Affairs reporter Rebecca Breyer that Gorsuch was “a very skilled attorney. He loved the practice of law. He was very practical, not just an ivory tower, lofty intellectual. He was good at learning the facts, good at dealing with clients and adversaries—an all-around fine lawyer.” It took Gorsuch just two years to make partner at Kellogg, Huber, which would have been impossible at an average Big Law firm but was fairly routine at Kellogg, Huber.

  While there, Gorsuch tried a variety of cases for a variety of clients, large and small, well-known as well as unknown. One Virginia civil case involved the fashion and home furnishings company Laura Ashley. Sir Bernard Ashley’s financial advisors had talked him into investing in Keswick Hall, a failing real estate development near Charlottesville, Virginia.

  During his pretrial preparation, Gorsuch deposed a reputedly knowledgeable witness who represented Coopers & Lybrand, Keswick’s accounting firm. For the entire eight hours of the deposition, the witness’s only answer to Gorsuch’s questions was “I don’t know.” Gorsuch turned the tables on Keswick’s lawyers by using the eight-hour string of “I don’t knows” as evidence to support an earlier ruling by the judge, a move that precluded
the company from using most of the arguments it had planned to use at trial. The case settled, in a confidential agreement, on what would have been the first day of trial.

  Mark Hansen wrote that both Sir Bernard and his French wife “Regine—Lady Ashley to us—took to Neil immediately. Watching Neil amble down the long hallway at Keswick Hall, B.A.’s country house hotel, Lady Ashley turned to me and remarked, in a heavy French accent, ‘That Neil, he is very ambitious.’ She meant it in a good way.”

  Hansen also wrote: “Neil had a knack for understanding clients and establishing relationships that led them to trust him. And so it was that Neil found himself, less than a year into practice, examining key witnesses and arguing critical motions in B.A.’s case before the Albemarle County [Virginia] Circuit Court—on his own, no hand-holder there to prompt him.

  Even the losers saluted Gorsuch’s performance. Donald R. Morin, the Charlottesville, Virginia, lawyer who opposed Gorsuch in that case, had high praise for the young lawyer from Kellogg, Huber. His work was “of the highest legal and ethical quality. He made it extremely tough for the defense, and his ethics were unquestionable. If he told you something, you definitely could believe it.”

  According to former partner David C. Frederick’s March 8, 2017, Washington Post op-ed article (“There is no principled reason to vote against Gorsuch”), “Anyone who sees Gorsuch as [being] automatically pro-corporation should talk to the officers at Rockwell International and Dow Chemical, against whom he reinstated a $920 million jury verdict for environmental contamination at the Rocky Flats nuclear facility. Executives at U.S. Tobacco Company might also be wringing their hands at the moment, given that Gorsuch, as an attorney, helped to attain one of the largest antitrust verdicts in history against the company.”