About a month ago, Judge Neil Gorsuch was leading a federal panel that was hearing an appeal by the City of Denver related to a $1.8 million civil rights verdict in a case of mistaken identity. City police in 2009 had kicked in the door of a family watching TV— the wrong family, it turned out— and roughed them up and took them to jail.
Lawyers for the city saw the high-dollar award as too large, and they appealed.
Speaking to The Colorado Independent over the phone from Jamaica Tuesday, David Lane, an attorney for the family who argued against that appeal, recalled Judge Gorsuch’s demeanor in the courtroom that day.
Gorsuch, he said, put the city’s attorneys on the spot about the conduct of the police. “Denver was rocked back on their heels,” Lane said, adding that the city settled the case for $1.6 million before the court could even issue an opinion. The settlement, he said, was inspired by the lead judge coming down on the city like a ton of bricks.
“Gorsuch all but got off the bench and slapped Denver silly,” Lane said. “I was extremely heartened to see a conservative like Gorsuch slap the crap out of Denver.”
Tonight, that conservative, a Boulder resident who sits on the 10th Circuit Court of Appeals, was nominated by President Donald Trump to fill Antonin Scalia’s vacant seat on the U.S. Supreme Court.
If confirmed, Gorsuch would become the second Coloradan— Justice Byron White was the first— to be named to the nation’s highest court. At 49, he also would be the youngest on the bench.
Trump revealed his pick during a news conference Tuesday evening.
“Depending on their age a justice can be active for 50 years and his or her decisions can last a century or more and can often be permanent,” Trump said. “I took the task of this nomination very seriously. I have selected an individual whose qualities define— really, and I mean closely define— what we’re looking for.”
As for Gorsuch, he praised Scalia, calling him a “lion of the law.” With his wife Louise at his side, he said, “It is for Congress, and not the courts, to write new laws.”
Like Scalia, he is a conservative judge who reads the Constitution literally. Unlike Trump he is no combative bombastic.
“He was a pleasure to appear in front of, he’s very polite,” said one Colorado attorney who tried a case before him, but declined to be named for this story. Lane described him as “a gentleman at all times. Extremely intelligent. Always very well prepared. Good sense of humor … His reputation is as being very conservative, but extremely bright and well prepared.”
Meanwhile, a “staunch liberal” student at CU-Boulder where Gorsuch is an adjunct law professor told the Daily Camera, “I may not always agree with him but I do think he gives all voices a fair hearing, and that’s all you can ask of a judge.”
By all accounts, Gorsuch is Colorado through and through.
A fly fisherman. A hiker and a hunter. An expert skier who was on the slopes the day he heard Scalia died. Former U.S. Sen. Ken Salazar, known as “Mr. Colorado” himself, gave Gorsuch “glowing reviews” in 2006 when the judge coasted through hearings for his 10th Circuit seat.
The Ivy Leaguer, who looks straight from central casting for the high court, comes from a politically well-connected Republican family — his mother was former President Ronald Reagan’s pick to lead the EPA. He has an impressive academic and professional background. Co-founder of a student newspaper at Columbia University, a Truman scholarship to Harvard Law, and then onto Oxford where he studied the “legal and moral issues surrounding assisted suicide and euthanasia.” Gorsuch clerked for Justice White and, after White’s retirement, for current justice Anthony Kennedy in the 1990s. He did a stint at the U.S. Justice Department and was a partner at the Washington, D.C. law firm of Kellogg Huber Hansen Todd Evans & Figel where he worked for 10 years.
In 2006, President George W. Bush nominated him to the 10th Circuit. Gorsuch, then 39, became one of the youngest federal appeals court justices in the nation.
As a judge, his conservative bona fides are strong.
Like Scalia, Gorsuch is seen as an originalist when it comes to interpreting the U.S. Constitution. That means he looks to what the framers meant when they wrote the founding document. He is also considered a textualist, meaning he looks at the words of laws and not what lawmakers intended when they wrote them.
In Colorado, he is perhaps best known for his concurring opinion in the 2013 Hobby Lobby case. The craft store chain didn’t want the government to force it to provide insurance coverage for contraception — something it objected to on religious grounds. Gorsuch sided with the appeals court’s majority opinion that used the logic of the Supreme Court’s money-in-politics Citizens United decision to recognize constitutional free speech protections for corporations on religious grounds.
At the time, the ACLU of Colorado said it disagreed with that opinion. “Religious liberty is a fundamental freedom,” said ACLU of Colorado’s deputy legal director Louise Melling. “We are all entitled to our religious beliefs but not to impose those beliefs on others. A business like Hobby Lobby cannot use religion to discriminate by denying women coverage for contraception.”
The U.S. Supreme Court and its conservative majority ultimately upheld the lower court’s decision— so, if confirmed, Gorsuch’s presence there wouldn’t change anything in that regard. But the opinion stung those who don’t believe corporations should have the power to exact religious exemptions on their employees.
Then there is assisted suicide.
This November, voters in Colorado overwhelmingly passed a ballot initiative that allows terminally ill patients to obtain medications from doctors so they can end their lives. Gorsuch has written extensively in that area, including a 2009 book titled “The Future of Assisted Suicide and Euthanasia.”
“As he wrote in the Wisconsin Law Review, Gorsuch believes that ‘any State’s decision to legalize assisted suicide would likely bring with it both benefits and some attendant costs, and, accordingly, the legalization question presents a difficult moral and legal choice,'” reported SCOTUSblog. In his book, Gorsuch argues “to act intentionally against life is to suggest that its value rests only on its transient instrumental usefulness for other ends,” and, SCOTUSblog reports, “suggests a standard that would leave room for patient autonomy while not allowing intentional killing.”
While Gorsuch does not have a judicial record on abortion rights, some of his language and his consistent siding with the exercise of religious rights, raises alarm bells with groups such as NARAL Pro-Choice America.
President Trump said repeatedly during his campaign that he would select a “pro-life” judge.
During his 2006 confirmation hearing in the U.S. Senate when he was nominated as a federal appeals court judge, Republican Lindsey Graham of South Carolina asked him how his past positions might affect his ability as a judge, specifically on the question of assisted suicide.
“My personal views, as I hope I have made clear, have nothing to do with the case before me in any case,” Gorsuch said, according to a transcript of the hearing. “The litigants deserve better than that, the law demands more than that.”
Gorsuch clarified that his writings have been “largely in defense of existing law” and consistent with Supreme Court decisions “in this area and existing law in most places.” So, he said, he did not believe there was much tension between his writings and whatever might come before him as a judge.
Jessica Grennan, the national director of advocacy for Compassion & Choices, which was the largest contributor to the Colorado aid-in-dying ballot measure, told The Colorado Independent Tuesday, “We are very concerned of Judge Gorsuch being on the Supreme Court with his adamant stance against end-of-life choices that will affect terminally ill people across the U.S.”
Gorsuch’s nomination comes during a charged political climate for the judiciary.
He must clear the Senate where some Democrats say they plan to filibuster any nomination to the High Court in response to Republican obstructionism that kept former President Barack Obama’s nominee, Merrick Garland, from ever even getting a hearing.
That is likely to put Colorado’s Democratic U.S. senator, Michael Bennet, who congratulated Gorsuch on the evening of his nomination, in a tricky spot.
“He takes seriously the Senate’s responsibility to advise and consent on Supreme Court nominations,” said Bennet spokeswoman Laurie Cipriano. “He intends to review Judge Gorsuch’s record carefully in the coming weeks.”
The Gorsuch nomination also comes at a time when the idea of the nation’s highest court acting as a check against the actions of new president Trump is at a premium.
Over the weekend, after a federal judge blocked part of Trump’s controversial executive order temporarily barring all refugees and certain visa-holders from entering the U.S. — and indefinitely banning Syrian refugees — his administration said they would keep the order in place, regardless of the judicial ruling. On Monday, acting U.S. Attorney General Sally Yates said she would not defend Trump’s travel ban. Hours later, Trump fired her.
That was not lost on one star in Colorado’s legal galexy, who spotted a flash of reassurance in Gorsuch as Trump’s choice for the High Court.
Melissa Hart, a University of Colorado law professor, says one thing that might be heartening to some in recent days is an opinion Gorsuch authored last summer that was related to a 1984 landmark case known as Chevron, which had to do with deference to administrative agencies.
“Neil wrote a really strong opinion— he concurred separately, so he wrote on his own— about the importance of the separation of powers,” Hart told The Colorado Independent. “I think it really reflected a sense of concern about an executive branch that sees itself as being able to override judicial decisions. In the time where we have an executive branch that looks ready to override all norms of basic decency, having a new member of the Supreme Court who believes that judges exist to serve as a check on the executive branch will be an important thing.”
But as in any courtroom action, there is a counter-argument to that.
Luis Toro, an attorney for the group Colorado Ethics Watch, says a judicial check on executive power is one thing, but he is concerned about a judicial override of the expertise of federal agencies.
“I think you have to look beyond the politics of the moment and see how much damage that could do over the long term,” he says about turning highly technical laws Congress puts in the hands of experts at federal agencies over to the courts to overturn. Switching power away from administrative agencies and into the courts could invite judges to rewrite laws in ways Congress didn’t intend, he says. In other words, legislating from the bench.
While plenty of recent profiles of Gorsuch compared him to conservative Scalia, whose seat Gorsuch would take over, Toro says a better comparison would be to compare him to Merrick Garland. President Obama went to great lengths to put up a moderate nominee, one he thought would gain support from both Republicans and Democrats, Toro said.
“…And I think if you do that you’ll see that Merrick Garland is a mainstream nominee, and Judge Gorsuch is very strongly conservative,” he said.
Susan Greene contributed reporting to this story.
Photo by Daniel Huizinga for Creative Commons on Flickr.