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Neil Gorsuch is preparing to follow in the footsteps of conservative justices Antonin Scalia and Clarence Thomas
He will testify Monday before the Senate Judiciary Committee
If Judge Neil Gorsuch is confirmed to the Supreme Court, he will break one major precedent.
It will mark the first time a former clerk will take the bench while his one-time boss, Justice Anthony Kennedy, is still sitting.
The Supreme Court has played a major role in Gorsuch’s life, and the lessons he learned as a clerk – from Kennedy and others – endured long after his clerkship came to a close in 1994. It exposed him to Kennedy, who would serve as his mentor, but also Justices Antonin Scalia and Clarence Thomas, with whom he appears at times to be more closely aligned philosophically.
“A clerkship – particularly a Supreme Court clerkship – is often the formative mentorship relationship for a lawyer,” said Carrie Severino, who clerked for Justice Clarence Thomas and is now chief counsel of the Judicial Crisis Network. “It is an opportunity for a young attorney, often just out of law school, to work closely with some of the most accomplished members of his field.”
If confirmed, Gorsuch’s legal journey will come full circle and land him back at the institution that served as his launching pad into the law. Moreover, he would likely ensure a strong conservative block on the court for years to come, extending the legacies of Scalia and Thomas in particular.
Gorsuch will appear Monday before the Senate Judiciary Committee, and the full Senate is expected to vote on his nomination next month.
Clerk to Kennedy, the court’s swing vote
Gorsuch served as a clerk from 1993-94 and was originally hired by fellow Coloradan, Justice Byron White. But because White retired that year, Gorsuch was farmed out to help in Justice Kennedy’s chambers.
His clerkships served “as something of a pole star throughout his career,” said longtime friend Mark C. Hansen.
“Their exceptionally high standards, and great humanity, were never far from his thinking about the law and how it should be applied in cases,” Hansen said.
After his clerkship and a stint in private practice, Gorsuch served as a principal deputy associate attorney general in the Justice Department beginning in 2005. As the George W. Bush administration worked its way through several post-9/11 national security legal issues, Gorsuch was charged with reviewing and editing legal briefs and developing case strategy.
Gorsuch’s views on how Kennedy might view the cases would be invaluable. At the time, the DOJ knew that Kennedy – who is often the court’s swing vote – could make or break their case.
“It is likely that part of Gorsuch’s job was to help gear arguments to Justice Kennedy, whose vote was the critical difference between a loss and win in key national security cases,” said Jennifer Daskal a national security expert and associate professor of law at American University Washington College of Law.
Gorsuch would leave his government job when he was nominated for a seat on the 10th US Circuit Court of Appeals.
It was Kennedy who flew out to Colorado to perform his swearing in.
Besides, Gorsuch’s credentials, his relationship with Kennedy may have played a role in Trump’s calculation to pick him as his first Supreme Court nominee.
One school of thought is that conservatives – who have been disappointed with Kennedy’s vote on issues such as abortion, same-sex marriage and affirmative action – might be eager to see Kennedy retire soon. They believe Kennedy would feel better about leaving if he knew one of his former clerks was on the bench.
“It always struck me as more conservative aspiration than meaningful prediction that the confirmation of a Justice Gorsuch might hasten Justice Kennedy’s retirement,” said Steve Vladeck, CNN Supreme Court contributor and professor of law at the University of Texas School of Law.
“If anything, having Judge Gorsuch on the court would only crystallize Justice Kennedy’s vital role at the center of the court – and make it that much more difficult for him to leave on terms that might lead to a fundamental shift in the court’s ideological balance,” he said.
Scalia: ‘a lion of the law’
While Kennedy serves as a mentor, Gorsuch appears more philosophically attuned to the judicial philosophy of Scalia, whose seat he would assume.
Last spring, after Scalia’s unexpected death, Gorsuch devoted a speech to him praising him for his fidelity and calling him a “lion of the law.”
“The great project of Justice’s Scalia’s career was to remind us of the differences between judges and legislators,” Gorsuch told an audience at Case Western Reserve University. “To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society.”
In the speech, Gorsuch made clear that he shared Scalia’s belief that the text of a law should be interpreted as it was written.
Indeed, Gorsuch has won the endorsement of Scalia’s widow, Maureen, who was a guest in the East Room as his name was announced.
That fidelity to so-called “textualism” is laced through Gorsuch’s opinions.
In one case, Gorsuch wrote a dissenting opinion complaining that the majority opinion had disregarded the actual text of a law in favor of the reading given to it by the Labor Department.
“Maybe the department would like such a law, maybe someday Congress will adorn our federal statute books with such a law,” Gorsuch wrote. “But it isn’t there yet. And it isn’t our job to write one – or to allow the department to write one in Congress’ place.”
‘Blown away by Thomas’s dissent’
Gorsuch not only was a follower of Scalia’s jurisprudence, but an admirer of Justice Thomas’ as well.
When Gorsuch was a clerk at the court, Thomas had only been on the bench for a few years.
“Judge Gorsuch had the privilege of clerking on the Supreme Court, where he observed justices who had been on the court for decades as well as justices, like Justice Thomas, who was just beginning,” said Katie Yarger, who clerked for both men. “Those early years, when a justice is establishing his or her jurisprudence and style, are particularly challenging,” she said.
Yarger clerked for Gorsuch in 2009-2010, and he recommended that she apply for the Thomas clerkship in 2013.
“Judge Gorsuch spoke to me about the special experience clerking for the Supreme Court and the responsibility and privilege that comes with such a position,” she said.
Buried in the thousands of pages of Gorsuch emails that the Justice Department has turned over to Congress is one from 2005. It reflects his deep respect for Thomas.
At the time, Gorsuch was riding a train and had just finished reading a dissent that Thomas had issued in Kelo v. City of New London, a controversial case over eminent domain.
The majority held that a local government could seize private property for the purpose of private redevelopment under the “takings clause” clause of the Constitution.
The clause states that “private property [shall not] be taken for public use, without just compensation.” The question the court confronted was whether economic redevelopment of land by private investors was a “public use” within the meaning of that constitutional provision. A 5-4 majority – with Kennedy joining his four more liberal colleagues – said yes.
“The majority opinion in Kelo was controversial to liberals and libertarians alike given that the city was, in effect, using its eminent domain power to transfer property from one private owner to another in a manner that seemed to run afoul of, at least, how the public perceives property rights if not how the Supreme Court has historically understood them,” Vladeck noted.
Thomas was livid about the decision.
“Today’s decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning,” Thomas fumed.
Gorsuch thought the dissent was so powerful that he sent an email to two friends who were former Thomas clerks.
“I am blown away by Thomas’ dissent,” Gorsuch said.
“Brilliant stuff that completely demolishes the majority,” he wrote. “Reminds us of the plain textual meaning of the Constitution and then breathes life and vital purpose into it, explaining the weaknesses of misguided judicial glosses.”
