by John Greenya
The Supreme Court in Hamdan (2006) rejected the administration’s position that the Graham amendment barred review of Hamdan’s case. An e-mail shows you discussed the decision with reporters, and the next day you [the senators] were drafting legislation to reverse the Court’s ruling.
Senator Feinstein then asked, “Is that true? And is it also true that, after the Military Commissions Act of 2006 barred pending habeas petitions by Guantanamo detainees, the Supreme Court found that the law was unconstitutional?”
Gorsuch replied:
My involvement in responding to Hamdan was limited. Hamdan was decided on June 29, 2006, approximately three weeks before I was confirmed as a judge. The Military Commissions Act was signed on October 17, 2006, months after I left the Department of Justice. Your question references an early draft of the Act that I reviewed but do not recall drafting. As I read it today, that draft would not have barred judicial review but would have sought to channel cases through the judicial-review mechanism of the Detainee Treatment Act. It is true that the Supreme Court some years later in Boumediene v. Bush (2008) held that certain aspects of the Act did not satisfy the Suspension Clause.
Senator Feinstein had been an able and well-informed questioner, and the nominee an adroit responder, but not a great deal of light was shed—which has become par for the course in Supreme Court confirmation hearings.
THE NEXT INTERROGATOR WAS the minority whip, Richard Durbin (D-IL), who also wanted to know about Gorsuch’s work on the signing statement for the Detainee Treatment Act. Gorsuch said, “As we discussed at the hearing, these events took place many years ago and my recollection is that there were individuals in maybe the Vice President’s office who wanted a more aggressive signing statement . . . and that there were others, including at the State Department, who wanted a gentler signing statement . . . . I was in the latter camp [along with] John Bellinger, among others. I did so in my role as a lawyer helping with civil litigation brought by individuals detained as enemy combatants and defended by the Department of Justice.”
Durbin then asked if Gorsuch had been briefed “on the CIA’s rendition, detention or interrogation program?” Gorsuch answered yes, but said he did not recall, of the many briefings and various national security clearances during his service at the Department of Justice, “which specific programs or when I was read into them.” Senator Durbin then moved on.
Matt Ford, in The Atlantic, reported:
Illinois’s Dick Durbin tried to persuade Gorsuch to reveal his abortion views by quoting the judge’s book on euthanasia, in which he said “the intentional taking of human life by private persons is always wrong.” Conservatives have interpreted that line as a signal of Gorsuch’s supposed anti-abortion beliefs.
“How could you square that statement with legal abortion?” Durbin asked him. “Senator, as the book explains, the Supreme Court of the United States has held in Roe v. Wade that a fetus is not a person for purposes of the Fourteenth Amendment, and the book explains that,” Gorsuch replied.
“Do you accept that?” Durbin asked.
“That’s the law of the land,” Gorsuch answered. “I accept the law of the land, senator, yes.”
DURING THE POST-HEARINGS PERIOD, Gorsuch had submitted more than seventy pages of written responses to Senate Judiciary Committee members’ questions regarding his Supreme Court nomination. Ron Bonjean, a communications specialist who had aided Gorsuch during the confirmation process, told the Washington Examiner:
He participated in the longest hearing of any 21st century nominee that lasted three rounds totaling nearly 20 hours and has met with nearly 80 senators. Judge Gorsuch answered 1,200 questions during his hearing. This is twice as many questions as Justices Sotomayor, Kagan or Ginsburg.
He was given 299 questions for the record by the Democrats, not [the full] Senate Judiciary Committee—the most in recent history of Supreme Court nominees. Gorsuch has answered those questions by providing another 70 pages of written responses. He did all this within six days of receiving the questions in order to give [Senate] Democrats ample time to review the answers prior to the committee vote and floor consideration schedule.
QUESTIONS ABOUT NEIL GORSUCH’S work during his year at the Department of Justice did, like several other exchanges during the nomination hearings, produce a few stray puffs of smoke, but no smoking gun. Some of his answers, like his I-was-a-lawyer-doing-a-job-for-a-client, may have struck his detractors as a tad slippery, but there was no evidence that he was dissembling. He was, after all, a Republican lawyer working for a Republican Justice Department that was advancing and supporting the policies of a Republican president. What else would he have done?
ON MARCH 22, 2017, New York Daily News reporter Adam Adelman neatly summarized the confirmation hearing’s thrust and parry:
Gorsuch, appearing again before the Senate Judiciary Committee, was asked to expound upon his job as a lawyer in George W. Bush’s Justice Department, where he helped draft certain anti-terrorism measures. Sen. Dianne Feinstein (D-Calif.), the ranking Democrat on the panel, pressed Gorsuch about his role in reviewing, and in some cases, approving, enhanced interrogation tactics, peppering the jurist with questions about a document from early 2006 that asked if “the aggressive interrogation techniques employed by the administration yielded any valuable intelligence” or “ever stopped a terrorist incident?” Gorsuch appears to have written “yes” in the margin of the document. When Feinstein asked him about that position, however, he said he was only doing his “job” as a lawyer for the administration. “My recollection of 12 years ago is that that was the position that the clients were telling us. I was a lawyer. My job was as an advocate, and we were dealing with detainee litigation. That was my job.”
Adelman continued:
Feinstein . . . expressed concern to Gorsuch that he had “been able to avoid any specificity like no one I have ever seen before” and . . . when asked to expound upon his job as a lawyer in George W. Bush’s Justice Department, where he helped draft certain anti-terrorism measures, he replied, “No one is looking to return us to horse and buggy days” . . . and when it came to abortion, a frequent topic of his hearing the day before, Gorsuch said plainly on Wednesday that he regarded Roe v. Wade, the landmark 1973 decision that effectively legalized abortion, as “the law of the land” and again offered assurance repeatedly that he respected precedent and judicial independence. “I care about the law, I care deeply about the law and an independent judiciary and following the rules of the law,” he said. “And that’s the commitment I can make to you, I can’t promise you more and I can’t guarantee you any less.”
As far as any damage being inflicted on Neil Gorsuch by the Democrats’ questions regarding the work Gorsuch did while in the George W. Bush Justice Department, when the fight was over, there was not a drop of blood on the ground.
Chapter Seven
* * *
ON THE BENCH
In 2006, when President George W. Bush named Neal Gorsuch to the federal bench as an associate justice on the Tenth Circuit Court of Appeals, Gorsuch’s former law firm released a statement which read, in part: “Neil had the brightest possible future as a trial lawyer in private practice. When he decided to leave Kellogg Huber Hansen for government service, he left behind a lucrative and successful career in which he would have thrived. His colleagues understood his admirable desire to serve his country, but were very sorry to see him go. Given Neil’s enormous legal talent and his distinguished service in government, we were not surprised by his nomination to the U.S. Court of Appeals for the Tenth Circuit.”
But gone he was, and in all likelihood, never to return. The time had come to put on a garment he would wear, also in all likelihood, for decades.
On November 20, 2006, Neil M. Gorsuch, in a ceremony known as an investiture, was sworn in as a federal judge by U.S. Supreme Court Justice Anthony Kennedy, Gorsuch’s former boss.
Lending a helping hand as the new appellate court judge donned his
new black polyester robe for the first time were the judge’s daughters, seven-year-old Emma and her five-year-old sister, Belinda. Asked what she thought of the ceremony, Emma said, “It was nice,” and went back to her cookie.
Legal Washington, D.C., was well represented that day. In addition to Justice Kennedy, there were a number of people from the Justice Department, including Rachel Brand, Elisebeth Collins Cook, Brett Gerry, Wan Kim, and Gregory Katsas.
Both of Colorado’s U.S. senators spoke, as did Mark Hansen of Kellogg, Huber, and the entire en banc Tenth Circuit Court of Appeals was there. Above the Law ran a short item provided by what it called a “tipster” who added, irreverently, “The Gorsuch clerks showed everyone around Denver and got trashed on consecutive nights. Good times were had by all.”
THE PEOPLE WHO ATTENDED the Gorsuch investiture knew what kind of man and what kind of lawyer he was, and had no doubt he would be a fine judge. But to the Tenth Circuit bar—the lawyers from Colorado, Oklahoma, Kansas, New Mexico, Wyoming, and Utah (the states that make up the circuit), plus those from other states who argued cases before the judges of the Tenth Circuit—the young judge with the prematurely gray hair was an unknown quantity. They weren’t sure just what to expect.
One of those lawyers was Baine Kerr, a Denver lawyer with a successful litigation practice. Kerr has had only one case before Neil Gorsuch, but it was a memorable one. He calls the 2001 case, Simpson v. Colorado, “Colorado’s trial of the century.”
“This was an extremely high profile case, the Penn State scandal of its time. As a legal case it really was unprecedented. There have been over a thousand articles written about it. There were state grand jury hearings, and Congressional hearings in Washington, D.C. The president of the University [of Colorado] was fired over it, as were the chancellor, the athletic director, and, eventually, the football coach. With all this citizen and media attention, it was anything but your typical appellate argument.”
In 2001, Lisa Simpson (the plaintiff’s real name) was a sophomore at the University of Colorado. One night in December, she and several girlfriends were drinking in Simpson’s off-campus apartment. One of the women, a tutor for the school’s football team, said some of her football player friends would be stopping by. Later a large group of players and several high school students whom the school was trying to recruit—sixteen to twenty in all—came to the apartment. Many of them were drunk.
Ms. Simpson, who also was intoxicated, soon went to bed and fell asleep. According to her complaint, she was awakened a short time later by two of the recruits, who were removing her clothing. She said she was then sexually assaulted by several recruits and several of the football players. She also said that another woman, in another bed in the same room, was being sexually assaulted by “at least one football player.”
The next day, Simpson’s roommate took her to a community hospital, where she reported the sexual assaults to the staff. The roommate also reported the assaults to the university’s vice chancellor for student affairs and the university’s Office of Victim Assistance. The players were charged with violating the school’s code of conduct, but not with sexual assault. No player lost his eligibility.
Lisa Simpson, who had been an honor student in high school, dropped out of school and did not earn a degree.
The case drew national attention. In February 2004 another University of Colorado student told Sports Illustrated that she had been raped by a fellow football player. On February 20, the L.A Times wrote:
Almost every day this month has brought a new accusation against the University of Colorado Buffaloes, and Thursday was no different. Police said they are investigating whether a team member sexually assaulted a woman in 2002, the seventh such claim since 1997.
Players also have been accused of offering alcohol and strippers to high school recruits, which has prompted a high-level investigation. Coach Gary Barnett was placed on leave Wednesday night after downplaying an allegation by Katie Hnida, a former Colorado kicker, who said she was assaulted by a teammate. Barnett called her a “terrible” player.
These developments have pushed Colorado to the forefront of a wave of embarrassing incidents involving college athletics. Much of the controversy centers on the way football programs cozy up to high school prospects.
In March, People magazine reported: “Simpson’s charges . . . were only the first gush in what has become a torrent of bad news for the University and its nationally ranked football program. In the last three months, two other women filed their own suits, alleging that they had also been sexually assaulted that same weekend by football players or recruits. Then in late January, portions of the depositions, complete with graphic details, were leaked to the press . . . . The growing scandal has attracted national attention and renewed the debate over out-of-control athletic programs and even whether some schools are using sex to entice prize recruits. (It’s alleged in some student depositions that the high school players brought to Simpson’s apartment were told there were women there willing to have sex with them.)”
In early December 2002, Lisa Simpson sued CU in Colorado state court, and two weeks later the university removed the case to federal court. A year later, Anne Gilmore, who had also been in Simpson’s apartment on the night in question and also said she had been raped, filed her claim in federal court; the two causes of action were joined as one case headed Simpson v. Colorado (Up to that point, to protect their privacy, the women had been referred to, both in open court and in documents, as “Student Trainer A” and “Student Trainer B.”)
In response, the university, which had consistently denied all charges, filed a motion for summary judgment. When granted, such motions eliminate the necessity for a trial because the judge has decided there are no “triable issues of fact.” Motions for summary judgment are often filed but rarely granted. However, in December 2005, the district court granted the motion, dismissing the case in its entirety and ordering the plaintiffs, Simpson and Gilmore, to pay the university’s expenses. It was at this point that the two young women brought attorney Baine Kerr into the case as lead counsel. Kerr was no stranger to the Tenth Circuit Court of Appeals, but it would be his first time going before a panel that included Neil Gorsuch.
“He had been on the court for just a year,” Kerr said, in an interview for this book, “or maybe a little more, and all I knew about him was that he had come from Alberto Gonzales’s Justice Department. Now my case was a Title IX civil rights case [because the plaintiff worked for CU’s Athletic Department], and under Gonzales the Justice Department had really retrenched dramatically on filing civil rights cases.
“All I knew about Judge Gorsuch was that he had been, basically, number two or three at the Justice Department under Gonzales, and I feared that he would have the same attitude toward plaintiffs’ civil rights arguments.
“The only other information I had about him was that he was from out here, which I thought was a positive, and I also knew that he had two daughters, which I considered very much of a positive.”
On the day the case was heard, the courtroom was packed, with national as well as local media present. When Baine Kerr began to argue why the decision to grant summary judgment should be reversed, he expected he would have fifteen minutes and then the lawyer for the university would have his quarter-hour turn.
“When I finished my fifteen minutes, I said, ‘I see that my time is up,’ but Gorsuch said, ‘Oh, no. keep talking. We want this to be fully aired.’
“I think I was up there for at least forty-five minutes. And then, after the counsel for the university argued for fifteen minutes, they had me up there again—for another forty-five minutes. In that afternoon, I must have been up there for two and a half to three hours, which, based on everyone I’ve talked to, was totally unprecedented.
“Mr. O’Rourke, the lawyer for the other side,” Kerr continued, “had expected to have a judge who was friendly to the university, and we were both flabbergasted by how involved and interested J
udge Gorsuch was. At one point, when I was arguing, it was almost like a philosophical dialogue about the problem of sexual harassment and rape by football players.
“O’Rourke just got raked over the coals by Neil Gorsuch, just hammered. But I think that he respects Gorsuch a lot. One of the plaintiffs, a nineteen-year-old girl, had gone to the police and told them she’d been raped by a football player. Three days later, the head football coach called her into his office and told her that if she went ahead with her complaint, her life would be ‘altered,’ ruined. But he did nothing to the player, other than make him run some laps.”
Kerr says that while the case was heard by a three-judge panel, it was Gorsuch who did most of the questioning from the bench. “He just raked my opponent over the coals. At one point he said, ‘You’re not going to stand there, Mr. O’Rourke, and defend the actions of what that football coach did to student trainer A, are you?’ and all poor Pat O’Rourke could say was, ‘No, judge, I’m not.’ ”
Baine Kerr’s takeaway from the Colorado rape case? “I walked out of there thinking Neil Gorsuch is one of the greatest friends young women could have in the federal judiciary. And I believe that to this day.”
He also believes, despite being a liberal Democrat with only a limited range of experience with Gorsuch, that the new justice would not, if given the opportunity, vote to overturn Roe v. Wade: “He’s very innovative and I think he would vote to extend the law in favor of civil rights. He’s a man who has daughters and who’s very passionate. Women’s civil rights seem very dear to him. So, no, I don’t think he would.”