by John Greenya
In March 2017, the Stanford Law Review published two essays about Gorsuch. One was by a judge who’d sat on the Tenth Circuit Court of Appeals with Gorsuch (before leaving to teach law at Stanford), and the other was by Mark Hansen, who wrote:
Neil joined a firm that was only about two years old . . . . It was a far cry from Columbia, Harvard, and Oxford. He had come to learn to be a lawyer . . . . Not for him the quiet library carrel: he wanted to be out there, helping clients, contending with adversaries, and arguing to courts. He accepted assignments willingly and did them well. He pitched in when—as was often the case—we were overwhelmed with the demands of high stakes litigation. Neil was, for partners, the kind of associate you prize; for associates, the kind of colleague you enjoy working alongside; and for clients, the young, eager, and committed lawyer who inspires both affection and confidence.
One of the most appreciative clients mentioned by Hansen in his article was Sir Bernard Ashley in the Virginia civil case discussed earlier. Hansen writes that Sir Bernard was a larger-than-life figure: “A robust six feet, four inches tall with an even larger personality, a commanding man who loved to hold court. Over tea he would tell wonderful stories of life in the famed Gurkha regiment of the British army and then as an entrepreneur bicycling printed tea towels over to Harrods. He and the eponymous Laura built a fashion empire that produced the largest IPO ever floated on the London Stock Exchange.”
When it came time to argue the defendant’s motion for reconsideration, the hearing ran deep into the night on the day before trial before a packed audience. “There, in the packed, elegant colonial-style courtroom, the author of Virginia’s leading civil procedure treatise warned the judge that the wily Gorsuch had led him into fatal error. But the judge stuck to his ruling; the Virginia Supreme Court denied the defendant’s emergency mandamus petition; and the case settled the next day,” the day trial was to begin.
In the penultimate paragraph of his Stanford essay, Hansen reminisced: “The following years brought other colorful and memorable trials, such [as] the month-long Conwood case in the Western District of Kentucky before the Honorable Thomas B. Russell and a jury of twelve. The result: the largest judgment ever affirmed and collected under the federal antitrust laws . . . . [T]he case was won by a team of four lawyers. We worked from an abandoned Elks Lodge just a shout across the alley from the tiny federal courthouse in Paducah.”
THE HEADLINE IN THE March 14, 2017, New York Times read “Neil Gorsuch has web of ties to secretive billionaire.” While the body of the article itself failed to live up to the provocative implications of the headline by revealing nothing untoward, it raised the question of the identity of the “secretive billionaire.” His name turned out to be Philip Anschutz, and he had already generated media interest unrelated to his being a client of the Supreme Court nominee. In California and the western states, he was well-known, and so publicity averse that he was called “the anti-Trump.”
To call Philip Anschutz rich and successful is like calling Kareem Abdul-Jabbar tall and talented. At one point he was the seventh-richest man in America; today he has backslid to a mere thirty-ninth. When he sat down with Ben Ryder Howe of Town & Country magazine in 2017, it was the seventy-seven-year-old mogul’s first-ever lengthy interview:
If you’ve been to a concert recently by Taylor Swift, Kanye West, or Justin Bieber, you put money in his pocket. If you’ve been to Yellowstone National Park, Mount Rushmore, or the Grand Canyon, your dollars likely found their way to him. Chances are you’ve heard of the basketball team he co-owns, the Los Angeles Lakers, or the railroad he used to hold, the Southern Pacific. It’s possible that today you will start the morning by reading one of his newspapers, drive to work in a car fueled by oil from one of his wells, and at night catch a Hollywood blockbuster he produced in one of the hundreds of movie theaters he owns, followed by a T-bone raised on one of his ranches.
Gorsuch and Anschutz met when the latter hired Kellogg, Huber to represent him in a civil matter in Colorado. Eventually, Gorsuch became his personal attorney and mentee. When President George W. Bush was looking to name federal appellate court judges in the West, Anschutz, a major Republican donor, lobbied hard, and successfully, for Neil Gorsuch.
A 2012 article (by Connie Bruck) in The New Yorker entitled “The Man Who Owns L.A.” provides numerous details about Anschutz:
Philip Anschutz, who is seventy-two, owns A.E.G. [Anschutz Entertainment Group] [and] has an estimated net worth of seven billion dollars, according to Forbes. He has made his fortune in oil and gas, real estate, railroads, telecommunications, and sports and entertainment. He is one of the largest landowners in the U.S., and his empire of more than a hundred and fifty companies, nearly all privately held, is worldwide. He is philanthropically active and has donated more than a hundred million dollars to create the Anschutz Medical Campus, at the University of Colorado, in Aurora. But Anschutz, who lives in Denver, is intensely private and does little to publicize his ownership of A.E.G. or any of his other business activities.
Bruck writes further that when Anschutz visits Los Angeles, he comes alone, sans entourage: “Friends say that the larger the gathering the more quiet Anschutz becomes . . . . Such self-effacement has created some bafflement in a city that takes personal aggrandizement for granted. According to Steve Soboroff, a businessman who was an adviser to former Mayor Richard Riordan during the building of Staples Center, ‘Anschutz . . . is the most important Angeleno of the last fifty years, and he’s not even an Angeleno.’ ”
Gorsuch began representing Anschutz and his companies when he was working for Kellogg, Huber. Mark Hansen said he assigned the future judge, then a junior partner, to help on various cases involving the Anschutz Company “both because of his skills and experience and because he had expressed to me an interest in getting involved in things relating to his home state.”
THE LONGER GORSUCH STAYED at Kellogg, Huber, the more diverse his practice became. As he told the Senate Judiciary Committee in a written statement in 2006 when he was named to the Tenth Circuit Court of Appeals, “During my time in private practice, I was involved in matters large and small for clients ranging from individuals to non-profits to corporations; my cases ranged from simple breach of contract disputes to complex anti-trust, RICO, and securities fraud matters. I tried cases, participated in substantial injunctive and evidentiary hearings, and argued motions of all kinds, including case dispositive motions to dismiss and for summary judgment. Discovery disputes, in limine motions in preparation for trial, post-trial motions, etc. I also took and defended depositions regularly, worked on appeals before federal and state courts of appeal across the country, and provided antitrust and other legal counsel to clients. I estimate that, during my time in private practice, roughly 70% of my litigated matters were in federal court and 30% in state courts. Approximately 90% of these matters involved civil disputes, with the remainder involving criminal matters.”
AT THE TIME OF his nomination, one of the main raps against Neil Gorsuch was that, à la his hero Antonin Scalia, he favored large corporations, i.e., the big guy over the little guy. However, a closer look at his record as a judge suggests that this assumption may be based on insufficient evidence.
In an article for The Atlantic magazine entitled “A Supreme Court Nominee Alert to the Dangers of Big Business,” the prolific legal writer Jeffrey Rosen, professor of law at George Washington University and a contributing editor to The Atlantic, writes that both Gorsuch proponents and opponents might well be in for a surprise or two if they took a closer look at his rulings on antitrust matters.
Rosen begins his lengthy article by taking issue with the Gorsuch-is-for-the-big-guy positions of Senator Chuck Schumer, the Center for American Progress, and the Constitutional Accountability Center, writing that “Gorsuch’s supporters respond, plausibly, that in many of the cases in which he ruled on behalf of corporations or against workers, he was following the letter of the law, or was bound by Supreme Court prec
edents.”
On antitrust, Rosen says, “Gorsuch’s record is more interesting than his critics allow.” And Rosen goes further, suggesting that Gorsuch will not be an easily predictable member of the highest court: “This perspective differs dramatically from the late Justice Antonin Scalia’s views on antitrust. In his own confirmation hearings in 1986, Scalia joked that in law school, he ‘never understood’ antitrust law, and later learned that he ‘should not have understood it because it did not make any sense then.’ . . . Gorsuch, by contrast, approaches antitrust law from the perspective of an experienced litigator, not an ideological law professor.”
According to Rosen, “As Gorsuch’s former law partner, Mark C. Hansen, told Law360, the experience in the American Tobacco case gave Gorsuch sensitivity to the perspective of both sides in antitrust cases. ‘I don’t think he’s afraid of antitrust; he understands it and is comfortable with it,’ Hansen said. ‘He’s quite familiar with both sides of the v. in the antitrust world.’ ”
Like Hansen, Rosen cites Gorsuch’s work in 2002 as a lawyer in private practice when he won “what was then the largest affirmed antitrust verdict in American history, a $1.05 billion verdict against the American Tobacco Company . . . . And on the 10th Circuit, Gorsuch wrote three important antitrust opinions that favored big corporations in some cases and their smaller competitors in others.”
JEFFREY ROSEN’S ARTICLE IN the March 2017 Atlantic was the second long article he had written about Neil Gorsuch. In the previous issue, which came out shortly after Gorsuch was nominated, he had written “A Jeffersonian for the Supreme Court,” in which he compared and contrasted Gorsuch with the late justice Antonin Scalia.
According to Rosen: “Neil Gorsuch, President Donald Trump’s nominee for the Supreme Court, is one of the most respected conservative legal intellectuals on the federal bench. Like Justice Antonin Scalia, he has the ability and the ambition to lead America’s constitutional debate by following a clear vision of textualism and originalism, based on the premise that judges should separate their political from their constitutional conclusions.
“But unlike the Hamiltonian Justice Scalia, the more Jeffersonian Gorsuch seems more willing to return to constitutional first principles and to question the constitutional underpinnings of the post–New Deal administrative state.
“There’s no doubt, however, that the principled Gorsuch would be willing to rule against Trump or a Republican Congress if he felt they exceeded their constitutional bounds—if Trump issued executive orders that clashed with the text of federal immigration laws, for example, or if Congress passed laws banning abortions that don’t involve crossing state lines and that exceeded its power to regulate interstate commerce. As Gorsuch said at the White House while accepting Trump’s nomination, ‘A judge who likes every outcome he reaches is very likely a bad judge.’ ”
Thus it remains to be seen if Neil Gorsuch, now a Supreme Court justice for life, will make decisions that are consistently conservative, like those of the late Scalia or the currently serving Clarence Thomas, or will on occasion surprise people, in the manner of Justice Kennedy and, every once in a while, Chief Justice John Roberts.
Chapter Six
* * *
A YEAR AT DOJ
By 2005, Neil Gorsuch was such a valuable partner in the law firm of Kellogg, Huber that when he left, one publication labeled him a “billings juggernaut,” meaning he brought a great deal of business—and money—into the firm each year.
In a 2017 speech to the Heritage Foundation, Gorsuch’s former partner Mark Hansen verified this statement. He said that as a private lawyer Gorsuch, whom he called a “constitutionally hard worker,” had between 2,400 and 3,000 billable hours, and that he had maintained that output for seven years. Hansen knew this to be a fact, he said, because he had personally reviewed Gorsuch’s billing entries at the firm. (According to the National Association for Law Placement, “billable hours requirements [for associates] ranged from 1,400 to 2,400 hours per year in 2004, [with] most offices reporting a minimum [requirement of] either 1,800 or 1,900 hours.”)
“That’s a lot,” said Hansen, who dismissed out of hand any notion that forty-nine-year-old Gorsuch couldn’t handle the caseload of the nation’s top bench. Hansen said that Gorsuch possessed “a great talent for civil trial law” and would have had a “lucrative” career had he not gone into public service.
“I would argue today that that experience as a civil trial lawyer, working in the trenches of our court system, is as telling about what Neil could be like as a justice as anything perhaps other than his service as an actual judge.”
At Heritage, Hansen also said, “I think it’s fair to say that Neil’s deep and lengthy engagement with our civil justice system exceeds that of any nominee to the United States Supreme Court since John Paul Stevens in 1975.”
Hansen also debunked the charge from the left that Gorsuch was a friend of big corporations and a foe of the “little guy,” citing the payday loans case in which numerous little guys had ended up with interest rates of 400 percent, stating, “I remember how deeply Neil . . . felt about trying to get justice for this woman and the other people who’d been victimized by this scheme.”
But the Justice Department had beckoned at a time when the young lawyer was looking to flesh out his resume to include public service. According to Wan Kim, with whom Gorsuch worked at both the firm and the Department of Justice, “Neil was highly valued at the firm, but there came a time when he decided he wanted to serve the public, to do public service. He had done quite well at the firm, but he wanted to serve the public.”
Asked if he thought Gorsuch saw DOJ as a stepping-stone to the federal bench, or if he had been motivated by his mother’s example, Kim quickly says no. “That’s certainly not what he talked about. He simply went there with no other agenda than serving the public. We talked about the job several times while we were there, and it was clear that he really enjoyed what he was doing.”
When Gorsuch was nominated for the Supreme Court, numerous media outlets described him as having been the “number three man in the Justice Department,” but Wan Kim says that’s not quite accurate. “He was the Principal Deputy to the Assistant Attorney General Robert McCallum. He was Robert McCallum’s number one aide, and when Robert was not around Neil would be the Acting Assistant General, and in that case it would be accurate. But I don’t think most people would call the Principal Deputy the same as the Assistant Attorney General.
“Neil was very smart, very earnest, and very hardworking. He and I had gotten along well at Kellogg Huber. It was a firm that was very intense, and it was staffed with very young lawyers, both the partners and the associates. And all were top rate—but I’m a little bit biased. The firm had made an effort to recruit people who were quite qualified, but Neil stood out.”
Also serving with Gorsuch at the Department of Justice was attorney Lily Fu Claffee, today the senior vice president, chief legal officer, and general counsel of the U.S. Chamber of Commerce (as well as executive vice president of the Chamber’s Litigation Center).
“When we went to Justice, the job description was to oversee its civil litigating component. When you are in a leadership role your job is not to talk down and second guess the litigating decisions of the litigating component, but rather to provide guidance and strategic direction.
“Traditionally, the Associate Attorney General is very closely aligned with the president and the White House. It’s a way the president can give executive direction to that part of the Justice Department without having to have everything go through the Attorney General. And when we were there, Robert McCallum was a very close ally of George W. Bush. It wasn’t like the president was calling McCallum every day; the White House wasn’t run like that back then. But we knew that whatever Robert wanted was closely aligned with what the president would have wanted us to do.
“It was a great relationship. We had very close relations with the other people who were in lead
ership positions and in the other litigating division, so it was an extremely collegial type of relationship.”
At the time she joined the Justice Department, Ms. Claffee was an equity partner with the Chicago firm Mayer, Brown, and she says that while she loved the firm, “When you’re in a big firm there aren’t that many opportunities to do something meaningful outside of your law firm work. So when something comes along like that—the chance to run one of the most important agencies in the federal government—how fun! And it’s litigation, so you know what you’re talking about. In my practice at Mayer Brown, I frequently had the government on ‘the other side of the v’ from me. So this was an opportunity to see how the other side lives.”
Claffee sees Gorsuch’s reasons as similar but not identical. “Neil was so well-established at his own firm, so well-regarded, and was making so much money that I don’t see his motivation as the same as mine. I saw it as a career opportunity. Also I knew how well-regarded Robert McCallum was at the Justice Department, and how close he was to the president. So for me it was an important opportunity to work with Robert, and I think that was true for Neil, too. He really looked up to Robert, and I think he saw that—working with McCallum—as a way to enhance his career and his resume [by being] in government.”
With regard to Gorsuch’s being named to the federal bench, Claffee sees it as simply serendipitous, because “no one can really plan for it. These things come up when they come up, but when a lawyer gets the nod, especially one who has been successful in private practice, there’s a good deal of ambivalence involved in making the decision. I knew how prominent he was and his family was in Denver, so I thought it made a lot of sense. Especially for lawyers like him who are, to use my own adjective, ‘appellatey’ [her term for a lawyer who is good at appellate work as well as—or as opposed to—trials], which he is, though he’s also a trial lawyer, but because he clerked for the Supreme Court, I’d include him in that definition.