Gorsuch's Rise Raises Concerns Regarding His Independence

How “true loyalty,” political connections, and conservative ties fueled his ascent

In November 2004, Neil Gorsuch oversaw legal teams in Eastern and Central Ohio for the Bush-Cheney campaign. In an email to President George W. Bush’s Political Director Matt Schlapp, he cheered, “What a magnificent result for the country. For me personally, the experience was invigorating and a great deal of fun.” (The experience for up to 15,000 people unable to vote in Columbus, Ohio, because lines stretched for hours was probably less invigorating or fun).

Gorsuch continued, “While I’ve spent considerable time trying to help the cause on a volunteer basis in various roles, I concluded that I’d really like to be a full-time member of the team.” 

His resume describes the various roles in which he was politically active to “help the cause,” with greater specificity than his Senate Judiciary Questionnaire ― Co-Director of Virginia Lawyers for Bush-Cheney; Bush-Cheney Marshal; RNC Bronco; and Co-Chairman of the Republican National Lawyers Association Judicial Nominations Task Force ― for which the Senate Republican Conference cited his Distinguished Service to the United States Senate for his work in support of President Bush’s judicial nominees.

As Gorsuch began his effort to “be a full-time member of the team,” the way he started and then advanced his public service career raise troubling concerns regarding his nomination to the Supreme Court.

A “True Loyalist”

In March 2005, Gorsuch interviewed at the Department of Justice to become Principal Deputy Associate Attorney General, and his candidacy was sent to the White House Office of Political Affairs for review. So he reached out to his former law school roommate ― who happened to be Chairman of the Republican National Committee ― and Ken Mehlman told the White House that Gorsuch was “a true loyalist” and “a good strong conservative.” A month later, Gorsuch formally got his job offer.

Now, questions are being raised about Gorsuch’s tenure at the Department of Justice—essentially whether he was, in fact, too much of a “true loyalist” and did not demonstrate enough independence when it came to issues of national security, including torture and warrantless surveillance.

For instance, Gorsuch developed talking points to defend the use of torture, or “enhanced interrogation.” In response to the question “Have the aggressive interrogation techniques employed by the admin yielded any valuable intelligence?” he handwrote “Yes” and made a to-do list that started with “Examples of Intell on GTMO.” This is especially troubling because then-candidate Trump repeatedly offered the same justification for reinstating torture ― that it “works” ― as he cavalierly said, “Would I approve waterboarding? You bet your ass I would.”

This is just one example why serious doubts are being raised over whether Gorsuch would serve as a check on executive overreach ― not be truly loyal to it. It also has led Judiciary Committee Ranking Member Dianne Feinstein to call on Judge Gorsuch to immediately provide missing documents and information regarding his role at the Justice Department, particularly in matters of executive power and national security. Judge Gorsuch must now supply this material so that Senators and the public can evaluate his complete record.

How a web of ties to a conservative billionaire landed Gorsuch a judgeship—when he wasn’t even a finalist

Concerns regarding Judge Gorsuch’s independence also have been magnified by the recent New York Times discovery that conservative billionaire Philip Anschutz “successfully lobbied Colorado’s lone Republican senator and the Bush administration to nominate Judge Gorsuch to the federal appeals court.”

Senate Democratic Leader Chuck Schumer has described Anschutz as “one of the leading advocates for a hard-right pro-corporate agenda.” Anschutz owns conservative publications such as The Weekly Standard and The Washington Examiner, and from 2013 to 2015, his foundation donated $500,000 to the Heritage Foundation and $150,000 to the Federalist Society.

In January 2006, there was an opening on the Tenth Circuit Court of Appeals, and on January 10, 2006, the Denver Post reported that there were three finalists—all women—with no mention of Gorsuch. This is not surprising—although Gorsuch had roots in Colorado, he had never practiced law there, compared to the three finalists who had deep ties to the Colorado legal community: a former Colorado Supreme Court Justice; a federal district court judge; and Colorado’s Solicitor General and professor at the University of Colorado. Also, at the time, the twelve-member court only had two female judges, and Colorado had never had a female circuit court judge (and still hasn’t).

What is surprising is that just two days after the Denver Post article, Anschutz’s lawyer sent the White House a letter on Anschutz’s behalf recommending Gorsuch, and three weeks later, Gorsuch was interviewing with the White House Counsel. By mid-March, President Bush had approved his nomination, subject to background clearances.

Anschutz’s success in securing this judgeship for Gorsuch is just one connection in a “web of ties” between the two men, and according to Senator Schumer, this history “suggests a judge whose fundamental economic and judicial philosophy is favorable to the wealthy and the powerful and the far right.”

Furthermore, although Judge Gorsuch has recused himself from most Anschutz-related cases (with one exception that his spokeswoman said was inadvertent), questions regarding his independence also have been raised by the New York Times’ assessment that Judge Gorsuch “appears to be leaving the door open to participating in Anschutz-related cases on the Supreme Court.”

Not a finalist for the Supreme Court? Still not a problem!

Especially given the timeline around Judge Gorsuch’s circuit court nomination, there are questions around how—ten years later—history has repeated itself.

During the presidential campaign, Trump made the unprecedented decision to release a list of Supreme Court finalists, and he outsourced the selection process to two conservative, ideological interest groups: the Federalist Society and the Heritage Foundation. On May 18, 2016, he released his list of 11 judges as potential United States Supreme Court Justices. Another finalist list without Gorsuch.

On September 23, 2016, Trump released a second list, with 10 more names, and declared, “This list is definitive and I will choose only from it in picking future Justices of the United States Supreme Court.”

Judge Gorsuch had made it this time.

In fact, according to The Weekly Standard (again, owned by Anschutz), “a main reason [for the second list] was to put Gorsuch’s name on it. But by adding 10 more names, it didn’t create a stir or look like favoritism.”

What happened in these intervening four months that changed the dynamic so radically in Judge Gorsuch’s favor?

What did it take to convince the Heritage Foundation and Federalist Society?

According to The Weekly Standard, Judge Gorsuch was not included on the first list because Trump’s advisors “hadn’t fully studied his judicial record, his years as a private lawyer, and his personal life.”

I am incredibly troubled by what these interest groups were “fully studying” during this time. For example, the Washington Post describes this highly inappropriate area of inquiry:

Gorsuch has been aggressively vetted for the court by conservative groups such as the Heritage Foundation, and they have backed him enthusiastically. These groups even scrutinized his attendance at St. John’s Episcopal Church — which draws from the largely liberal population in Boulder, Colo., calls itself a largely liberal congregation and advertised on its website for the Women’s March in Washington last month — and concluded it was not a strike against him.

When it comes to evaluating Judge Gorsuch’s adherence to the rule of law, I am at a complete loss for why his choice of which church to attend would need to be scrutinized at all ― and I have experience evaluating and recommending hundreds of candidates to President Obama for potential judicial nomination.

But even more concerning, once they embarked on this line of questioning, what did it take to “conclude it was not a strike against him?”

On August 1, 2016, an anonymous judge on the Tenth Circuit requested that all of the judges on the court rehear the case Planned Parenthood Assn. of Utah v. Herbert ― even though neither party had made such a request ― to reconsider a decision that provided a preliminary injunction against the Governor of Utah, who tried to block Planned Parenthood of Utah from receiving federal funding. As Judge Briscoe noted, it was an “unusual procedural step” and would “surely come as a surprise to the parties, who have clearly moved on.”

Judge Gorsuch wrote a dissent in this denial of rehearing, escalating this procedural issue to what one progressive legal commentator called a “crusade against Planned Parenthood.” While we do not know for certain which anonymous judge set this process in motion, a conservative legal commentator, who praised Judge Gorsuch’s dissent as “powerful,” noted that “it’s not climbing out on a limb to surmise that it was Gorsuch who made the sua sponte call.”

Could the sua sponte call in this case—with the future opportunity to write a dissent—have been enough for these interest groups to conclude that Judge Gorsuch’s attendance at his church was not a strike against him?

Or maybe Judge Gorsuch’s August 23, 2016, concurring opinion in Gutierrez-Brizuela v. Lynch —to his own majority opinion—proposing an end the long-settled legal principle known as the Chevron doctrine satisfied any lingering questions. After all, this opinion helped establish Judge Gorsuch as being to the right of Justice Scalia, who believed that Chevron “accurately reflects the reality of government, and thus more adequately serves its needs.”

Or maybe Anchutz’s support for Judge Gorsuch ― and Anchutz’s hundreds of thousands of dollars in donations to the Heritage Foundation and Federalist Society—convinced them.

With all of these questions about Judge Gorsuch’s independence, we deserve to know how the Federalist Society and Heritage Foundation communicated with him ― and with Trump’s campaign, transition team, and administration ― in vetting him and resolving “potential strikes” against him. Senator Richard Blumenthal has asked for this information, and a thorough evaluation of Judge Gorsuch’s nomination cannot be complete without it.

The Supreme Court must protect our constitutional rights and serve as an effective check and balance on the other branches of government. Judge Gorsuch’s rise from a young private practice partner to Supreme Court nominee raises many questions and concerns about his independence and ability to serve as the Supreme Court Justice we need.

In next week’s hearing, Senators must ask these questions—and Judge Gorsuch must answer them. 

This post has been cross-published at the American Constitution Society blog.

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