by John Greenya
IN ADDITION TO NEIL Gorsuch, the judicial panel in the Simpson case consisted of judges Harris L. Hartz and Monroe G. McKay. On September 6, 2007, in an opinion written by Judge Hartz, the court announced its decision.
In our view, the evidence presented to the district court on CU’s motion for summary judgment is sufficient to support findings (1) that CU had an official policy of showing high-school football recruits a “good time” on their visits to the CU campus, (2) that the alleged sexual assaults were caused by CU’s failure to provide adequate supervision and guidance to player-hosts chosen to show the football recruits a “good time,” and (3) that the likelihood of such misconduct was so obvious that CU’s failure was the result of deliberate indifference. We therefore hold that CU was not entitled to summary judgment.
In simpler English, this meant that the appellate court had overturned the decision of the trial court, ruling, in effect, that summary judgment should not have been granted and the case should have been allowed to go to trial because there was sufficient evidence for the jury to find in Simpson’s and Gilmore’s favor.
On October 10, 2007, the university filed a petition for rehearing, which a month later the entire Tenth Circuit denied. It also denied CU’s request that the entire appellate court decide the issue.
The university had a hard decision to make.
On December 5, 2007, the Denver Post reported: “The University of Colorado said today that a settlement has been reached in a Title IX lawsuit that was filed after allegations of rape at a party attended by CU football players. Lisa Simpson will receive $2.5 million and a second woman will receive $350,000 under the agreement signed last night by CU president Hank Brown. Brown said agreeing to the settlement ‘was a difficult decision, painful in some ways,’ but ‘in the best interest of the university.’ ”
In reprising the facts, the newspaper reported, “On Sept. 6, a three-judge panel of the U.S. 10th Circuit Court of Appeals reinstated Simpson’s lawsuit, saying that the key question was whether the risk of such an assault during recruiting visits was obvious. The appellate judges—Harris Hartz, Monroe McKay and Neil Gorsuch—said evidence could support such a finding based on widespread reporting of sexual misconduct in college-football programs, including repeated concerns about CU’s program.”
According to Simpson’s lawyer, Baine Kerr, the November 9 ruling meant he was now free to argue that CU had ignored repeated warnings that some of its football players and recruits engaged in sexual assaults, including rape.
In the September ruling reinstating the lawsuit, the three-judge panel noted that in 1989, Sports Illustrated magazine had run an article stating that there’d been a number of sexual assaults by CU players. In 1990, two CU football players were charged with sexual assault arising from separate incidents. Then, in 1997, a high school girl alleged that she had been sexually assaulted by a recruit at a party.
In 1998, as a result of all this publicity, then–Boulder district attorney Alex Hunter and Assistant District Attorney Mary Keenan—the current DA—had met with CU officials to express concern about a pattern of sexual misconduct. At the meeting, Keenan expressed concern about women being made available to recruits for sex.
But the court said that after the meeting with Keenan, CU “did little to change its policies or training . . . . Not only was the coaching staff informed of sexual harassment and assault by players, but it responded in ways that were more likely to encourage than eliminate such misconduct.”
AT THE TIME HE defended the University of Colorado in the Tenth Circuit Court of Appeals in the Simpson case, university counsel Patrick O’Rourke was employed by the University of Colorado full-time in its in-house litigation department. Before joining the University of Colorado, O’Rourke had been in private practice as a director of the law firm Montgomery Little & McGrew, in Englewood, Colorado.
Not surprisingly, Mr. O’Rourke has a clear and vivid memory of the Simpson case. Asked if it’s fair to say that while the plaintiffs’ lawyers did not expect Neil Gorsuch to be sympathetic, O’Rourke’s “side” did, he replied, “Knowing that Judge Gorsuch had been appointed by a Republican president and was thought to be fairly conservative, we were hopeful that he would be sympathetic to our view of the case. But he didn’t have any track record or any prior Title IX cases, so we were speculating, but we really didn’t have any way of knowing. He was an unknown quantity.
“As I recall, Judge Hartz was the presiding judge, so he was the one working the clock, but I was a little bit surprised because normally when you’re in the Tenth Circuit you get your fifteen minutes and then you sit down, and that’s when it started to stretch up around twenty minutes for Baine, I noticed it; but it’s not unusual, if the judges have questions, for it to stretch a little bit. I think I was up for thirty-five to forty minutes. Gorsuch was very active, but I think it’s fair to say that all three judges on the panel were not shy.”
Would Patrick O’Rourke agree with Baine Kerr’s statement that Neil Gorsuch gave him, Pat O’Rourke, a hard time?
“Yeah. It was obvious from when I got up that the panel had some real problems with the underlying case and with Judge Blackburn’s [summary judgment] order that was in our favor. Judge Gorsuch asked some pretty pointed questions, and I felt from the time I got up that I was on the defensive.”
O’Rourke says pointed questions are to be expected when arguing before the appellate courts, but that this case was markedly different. “Normally someone will give you a softball question to take a swing at, but I don’t remember many softball questions in that case.”
O’Rourke, who had only one other case before Neil Gorsuch in the years since Simpson v. Colorado, says the judge is well respected among lawyers who argue before the Tenth Circuit, an assessment with which he, personally, agrees. “He’s a good judge, and he was very well respected in our legal community, and after the Simpson case he served on the faculty of the law school and taught, so he’s pretty well thought of in our parts.”
When told that Baine Kerr believes Neil Gorsuch could become one of women’s best friends in the federal judiciary, O’Rourke said, “I don’t know. Everybody’s kind of guessing right now because you can take judges who are on the Tenth Circuit level, and at that point in time they are applying the law as the Supreme Court gives it to them. When people are on the Supreme Court, they are no longer in the same place they were before, and over time you see justices evolve in their thinking.”
Patrick O’Rourke feels it’s “way too early” to predict that Gorsuch will become one of the great Supreme Court justices, in part because that depends on the cases in which he gets to play a significant role. “Part of what makes a great justice is the cases they get to decide. And certainly he’s young enough that he will be on the bench for a long time and probably will get a chance to sit on some really big important cases. So, if he ends up sitting on those cases and gets assigned those opinions he could be a great one. But if John Roberts doesn’t assign those opinions to him, who knows how history will unfold? That’s one of the mysteries.”
As for Simpson v. Colorado, Patrick O’Rourke says, “It was a fascinating case, and one I’ll remember forever—even though I got squashed.”
AS BACKGROUND FOR THE nomination hearings, the Senate Judiciary Committee sent Neil Gorsuch a lengthy questionnaire that asked for his education, employment, and publication history, plus a list of the “ten most significant cases” he had heard during his decade as an appellate court judge. Gorsuch’s answers to the questionnaire ran to sixty-eight pages, and revealed that he had decided 3,000 cases (1,800 criminal and 1,200 civil) while on judicial panels of usually three judges, but sometimes more, an impressively high number.
In Yellowbear v. Lampert, decided in 2014, Andrew Yellowbear, an Arapaho Indian in prison for murder, wanted to use the prison’s sweat lodge, and when the prison officials refused, he brought suit, claiming this violated his right to exercise his religious faith. As People for the Americ
an Way, a liberal group, reported, “This was not a difficult case, one that was made even easier by the fact that a ruling for Yellowbear would have no impact whatsoever on anyone else’s rights. So it is no surprise that judges nominated by three different presidents (Reagan, Bush 43, and Obama) were in agreement . . . . Yellowbear was a straightforward case that Gorsuch ruled correctly on. He and his colleagues were smart enough to know that ‘due deference’ doesn’t mean ‘blind acceptance.’ ”
Hobby Lobby v. Sibelius, a 2013 case, was one of the most talkedabout cases during the Judiciary Committee members’ questioning of Gorsuch. In this case, the Greens, the family that owned Mardel, a crafts and Christian bookstore chain, sued the Department of Health and Human Services, claiming that their faith would not allow them to follow the provision of the Affordable Care Act requiring them to provide their employees with health insurance that covered contraceptive devices. They sought an injunction to halt the fines triggered by the noncompliance, and when they lost, they appealed the decision. The question became whether a corporation had this right, and the court claimed a corporation did have that right. Gorsuch, who voted with the majority (but did not write the opinion), noted in a concurrence, as qz.com reported, “that the family’s views were reprehensible to some and that religious freedom laws are especially designed to protect unpopular positions.”
JUDGE GORSUCH’S SELECTION OF these specific cases did not seem designed to send any particular message other than to give the committee a representative sampling of decisions, dissents, and concurrences over a broad range of topics. But he did manage to include cases that involved issues dear to him, such as his opposition to the Chevron deference, his support for religious liberty, and his Scalia-like view of the Fourth Amendment prohibition against unreasonable searches and seizures.
Jimmy Hoover of Law360 wrote in 2017 that Gorsuch had “shed light on his judicial priorities”; Reuters’ Allison Frankel commented, “After spending a long day immersed in Judge Gorsuch’s rulings, I can confirm one certainty about the judge: He is an elegant writer whose opinions have all the punch of Scalia’s but none of the occasional nastiness. The law will be a little more broadly accessible if he is confirmed”; and Washington Post legal reporter Robert Barnes observed, “[He] 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.”
Chapter Eight
* * *
A WAY WITH WORDS
From his earliest days as a student, Neil Gorsuch—like his legal hero Antonin Scalia—displayed an ability to write well, which he later honed. At Georgetown Prep he wrote occasionally; at Columbia University frequently; less so while in law school; and then considerably more when he turned his Oxford dissertation into his first book, The Future of Assisted Suicide and Euthanasia.
But it was during his three years at Columbia (1986–88) that Neil Gorsuch wrote most often and on a fairly regular basis as he and like-minded friends offered a conservative alternative to the liberal views that prevailed at Columbia in the mid-1980s.
The in-your-face conservative arguments that he had offered, politely and with humor, while sparring with liberal professors at Georgetown Prep gave way to more fully formed statements of personal belief intended to sway the opinions of others or simply to vent his disagreement with some of what he considered the more outré opinions of campus liberals.
This became easier to do after Gorsuch and two of his friends, Andrew Levy and P. T. Waters, founded The Columbia Federalist as a campus publication with a conservative, satirical bent. This period was also the time when young Neil Gorsuch began to solidify his belief in both originalism as a way of interpreting the U.S. Constitution and textualism as the correct way to read a statute, i.e., by following the exact wording and not looking to the intent of the legislators.
In his first year, he ran for a seat in the student senate. He was disqualified for having put up too many posters, but he had already answered a questionnaire sent to all the candidates by the student newspaper The Spectator. The first question had to do with whether the U.S. Marine Corps should be allowed to recruit on campus. Most candidates answered in the negative, citing the Corps’ policy of not accepting gay men and women, but Gorsuch took a different tack.
“The question here,” he wrote in an answer that also sounds a contemporary note, is not whether “the Marines should be allowed to recruit on campus, but whether a University and its community, so devoted to the freedom of individuals to pursue their own chosen lifestyles and to speak freely, has the right or obligation to determine who may speak on campus or what may be said.
“To fulfill an immediate end,” Gorsuch added, “we are likely to forget the underlying principle that every human being, according to our nation’s proclamations, and reinforced by our University’s standards, has an inalienable right to express himself or herself—whether we agree or not. Free speech works; it works better than any form of censorship or suppression; and in exercising [it] vigorously, the truth is bound to emerge.” Thus, instead of a civil rights issue, Gorsuch turned the question into one involving free speech.
In 2017, at the time of his nomination, many reporters went back to these student writings, hoping to find in these collegiate tea leaves predictors of how, if confirmed, he might vote on the big issues of the day.
On February 1, the Washington Post’s Amy Wang wrote, “Gorsuch would write an occasional column for the paper called ‘Fed Up.’ Although he had once seemed to express support for Cuban refugees rallying against Fidel Castro, in his later columns, Gorsuch rarely hid a disdain for campus activists, often using quotation marks when describing progressives or progressive issues.
“[H]e criticized protesters,” Wang continued, “who had tried to block the eviction of a tenant from her university-owned apartment. ‘Our protestors, it seems, have a monopoly on righteousness,’ Gorsuch wrote in April 1988.”
According to Amy Wang, Levitt quoted Gorsuch as saying, “I’m not sure that conservatism and Columbia can be easily connected . . . . However, the debate has been opened up considerably, and this is good . . . . Columbia is a better place than it was ten years ago. While conservatism may not be the dominant campus belief, it’s healthy to have the mix that currently exists.”
ALTHOUGH FEW OTHER PUBLICATIONS picked up on these student writings—or ran similar articles—in mid-March 2017, Arianna Huffington’s Daily Beast ran a story by Brandy Zadrozny that took Neil Gorsuch to task for his support of and affection for his college fraternity:
According to school newspaper reports and interviews with former Columbia students, FIJI’s [the fraternity’s nickname] reputation was unrivaled among Columbia’s 12 other fraternities at the time—defined by accusations of hard-partying, racism, sexism, and date rape. FIJI, as one former member claimed, was known as a house where the spiked punch flowed, and party tents known as “smut huts” were erected for one clear purpose . . . .
In a spring 1988 farewell to graduating columnists, Daily Spectator editors handed out nicknames like “amazin’ artiste,” “drawing demon,” and “fantastic feminist” to departing seniors. For Gorsuch, editors offered: “Neil Gorsuch, Fiji ain’t all that bad.”
When asked just what the nickname was meant to convey, Andrea Miller, a self-described “deeply involved campus activist” and former Spectator opinion-page editor who ran Gorsuch’s columns, says she remembers it as a nod to his passionate and constant support of Phi Gamma Delta.
Brandy Zadrozny reached Michael Behringer, a member and onetime president of FIJI. According to her article, he told her, “any rumors of the fraternity’s alleged impropriety are unfounded.”
Behringer acknowledges the existence of gossip, mostly involving hard partying and allegations of sexism. “But there wasn’t any evidence of [sexism or da
te-rape],” he says. “The thinking from some of these people was, ‘You are a frat, therefore you must be a misogynist,’ but there were never any real accusations made against us. There was just no substance behind it.”
As Behringer notes, there is no public record of any woman accusing any member of the FIJI fraternity with rape or sexual misconduct before or during Gorsuch’s time on campus . . . .
“There certainly were some members who were rowdier than others, but Neil wasn’t part of that. He graduated in three years and spent his time focused on his studies and writing,” Behringer says.
In the first week of February 2017, the Associated Press quoted several former colleagues on the start-up Federalist Paper who felt “co-founder Gorsuch was a thoughtful, unseasonably mature student dedicated to fostering debate on campus. ‘He was not an ideologue,’ says M. Adel Aslani-Far, a former writer and editor for the paper. ‘At his core was that things should be thought through and presented and argued, not in a confrontational sense, but in the lawyer-judge sense.’ ”
The AP article continued:
Even during bleary-eyed, wee-hours sessions of squeezing an issue into print, Gorsuch made sure any cuts to “pro” and “con” commentaries didn’t chop either argument unequally, said Aslani-Far, now a corporate lawyer . . . .
Even Gorsuch’s political adversaries from Columbia recall him as civil and genteel . . . . And they can’t forget how he sneered at campus activism, [writing that] protests over issues that included student elections, punishment for blockading buildings and a fraternity system under scrutiny over its treatment of women and black students “inspire no one and offer no fresh ideas or important notions.”
Inspire no one? “Racial justice and freedom of speech and sexual assault and misogynistic behavior at frats, those were burning issues, and they remain burning issues to this day,” says Andrea Miller, a former opinion-page editor at the Columbia Daily Spectator, who published Gorsuch’s columns . . . . She’s now president of the National Institute of Reproductive Health.