Judge Neil Gorsuch – Nominee to be Associate Justice of the Supreme Court: Part One – Background

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.

On May 18, 2016, when Donald Trump released his first list of potential Supreme Court nominees, there was a notable omission: Tenth Circuit judge Neil Gorsuch.[1]  The omission signaled that Trump was different than previous Presidents: focused on “out of the beltway” candidates and unimpressed by Ivy League credentials.[2]

Of course, last week, Trump chose Gorsuch for the nomination, bypassing Judge Thomas Hardiman, who worked as a taxi driver to pay for law school, and Judge William Pryor, who dedicated his entire life to government service.  In his announcement speech, Trump emphasized Gorsuch’s intelligence and qualifications, while downplaying the nominee’s privileged background.  Nevertheless, to understand the kind of justice Gorsuch will be, it is necessary to look not just at his judicial record, but at his legal career before he took the bench.

Childhood and Education

Neil McGill Gorsuch was born in Denver, Colorado on Aug. 29, 1967.  Gorsuch’s mother, Anne Gorsuch Burford, was a prominent Colorado Republican who served in the legislature in the mid-1970s.  In 1981, Burford was confirmed to serve as President-elect Reagan’s EPA Administrator.[3]  Gorsuch moved to D.C. with his mother shortly after and grew up in the Beltway, attending Georgetown Preparatory School.  He went on to Columbia University and attended Harvard Law School on a Truman scholarship.  While at Harvard, Gorsuch served as a summer associate in a number of prominent law firms, including Davis, Graham & Stubbs, Cravath, Swaine & Moore, and Sullivan & Cromwell.

Legal Career

After graduation, Gorsuch clerked for conservative Judge David Sentelle on the U.S. Court of Appeals for the D.C. Circuit.  He went on to Supreme Court clerkships with Justices Byron White and Anthony Kennedy.  After his clerkships, Gorsuch spent ten years in the Washington D.C. office of Kellogg, Huber, Hansen, Todd, Evans & Figel (“Kellogg”), the last seven as a partner.  During this time, Gorsuch also attended University College, Oxford, getting a Doctorate of Philosophy for his research on assisted suicide and euthanasia.

At Kellogg, Gorsuch participated in several prominent contracts, RICO, and securities cases.  In 2002, Gorsuch led his client, Conwood, to the then largest private damages award in antitrust litigation, securing a $1.05 billion judgment against United States Tobacco Company.[4]  Furthermore, Gorsuch was one of the lead attorneys in two cases that secured the rights of dissenting class members to appeal the approval of a class action settlement.[5]

During his time at Kellogg, Gorsuch occasionally penned articles on legal issues.  In 2004, he published an article exploring the legality of assisted suicide.[6]  In Feb. 2005, Gorsuch wrote for the National Review, opining that liberal activists were using the courts to move on policy issues that they were unable to win in the political sphere.[7]

In 2005, Gorsuch was hired to be Principal Deputy to Assistant Attorney General Robert McCallum.  In that role, he helped manage the work of the Department of Justice, focused on the Antitrust, Civil, Civil Rights, Environment, and Tax Divisions.  In this role, Gorsuch reviewed briefs, decided which cases should be filed and settled, and implemented various civil justice initiatives.

Nomination and Confirmation

On May 10, 2006, Gorsuch was nominated by President George W. Bush for a Colorado seat on the Tenth Circuit Court of Appeals.  Gorsuch received a cursory hearing on June 21, 2006, with only Senator Lindsay Graham present from the committee.[8]  While Gorsuch was questioned about his writings on assisted suicide,[9] there was no objection to his nomination in committee.  Gorsuch was confirmed by the Senate in a voice vote without opposition on July 20, 2006, a mere two months after his nomination.

Shortly after his confirmation, Gorsuch’s first book, The Future of Assisted Suicide and Euthanasia, was published by Princeton University Press.[10]  The book elaborates on Gorsuch’s previous writings, laying out his opposition to the legalization of physician assisted suicide.[11]  Specifically, Gorsuch criticizes the arguments in support of assisted suicide and argues that the intentional ending of human life is morally wrong.[12]

Drawing Conclusions

It is stating the obvious to note that, as a white male, Judge Gorsuch does not add gender or racial diversity to the Supreme Court.  However, what is more notable is that Judge Gorsuch’s experience and credentials are very similar to that of another justice serving on the court: Chief Justice John Roberts.  Gorsuch, like Roberts, is a graduate of Harvard Law School.  Roberts and Gorsuch both spent much of their careers in Big-law practice, with short stints in the federal government.  Additionally, Gorsuch, like Roberts, spent most of his professional life in Washington D.C., only moving to Colorado upon his confirmation to the Tenth Circuit.

However, unlike Roberts, who endured a long, protracted confirmation, Gorsuch was confirmed with hardly any debate or fanfare.  Despite his conservative credentials,[13] and his youth, Gorsuch found support from every single Democrat in the Senate.  The two months from nomination to confirmation for Gorsuch is particularly astounding given the extended delays many later nominees faced.  While some of this is attributable to a less contentious time in confirmation politics, another factor is the relatively slim paper trail the nominee then possessed.  Other than a handful of law review articles and editorials, most focused on assisted suicide, Gorsuch had published little, and as such, had said little to attract opposition.

This will not be the case for his current confirmation.  Gorsuch has ten years of opinions for critics to dig through to find objectionable material.  Nevertheless, Gorsuch’s corporate background, and smooth confirmation to the Tenth Circuit speaks to his likely elevation, and suggests that, as a justice, he would be a conservative in Roberts’ mold.

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.

[1] Jenna Johnson and Robert Barnes, Trump Releases List of 11 Judges He’d Consider Nominating to Supreme Court, Wash. Post, May 18, 2016, https://www.washingtonpost.com/politics/trump-releases-list-of-11-judges-hed-consider-nominating-to-supreme-court/2016/05/18/8ed0e14e-1d25-11e6-b6e0-c53b7ef63b45_story.html?utm_term=.c3874559cf24.

[2] Id. (quoting Jonathan H. Adler).

[3] Patricia Sullivan, Anne Gorsuch Burford, 62, Dies: Reagan EPA Director, Wash. Post, July 22, 2004, http://www.washingtonpost.com/wp-dyn/articles/A3418-2004Jul21.html.

[4] Conwood v. UST, No. 5:98-CV 00108 (W.D.Ky), 290 F.3d 768 (6th Cir. 2002), cert. denied 537 U.S. 1148 (2003).

[5] See Devlin v. Scardelletti, 536 U.S. 1 (2002); Cal. Pub. Employees’ Retirement Syst. v. Felzen, 525 U.S. 215 (1999).

[6] Neil Gorsuch, The Legalization of Assisted Suicide and the Law of Unintended Consequences, 2004 Wis. Law Rev. 1347 (2004).

[7] Neil Gorsuch, Liberals and Lawsuits, National Review Online, Feb. 2005.

[8] Confirmation Hearings on Federal Appointments Before the S. Comm. on the Judiciary, 109th Cong. Serial No. J-109-4 (2006).

[9] See id. (Questions from Sen. Ron Wyden to Neil Gorsuch).

[10] Mike Norton, Gorsuch is a Solid Conservative Pick for the Supreme Court, The Hill, Jan. 31, 2017, http://thehill.com/blogs/pundits-blog/the-judiciary/317015-gorsuch-is-a-solid-conservative-pick-for-the-supreme-court.

[11] Neil Gorsuch, The Future of Assisted Suicide and Euthanasia (Princeton University Press 2006) (2009).

[12] Id.

[13] Confirmation Hearings on Federal Appointments Before the S. Comm. on the Judiciary, 109th Cong. Serial No. J-109-4 (2006) (statement for the record of Sen. Patrick Leahy) (calling Gorsuch “very conservative”).

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