Gorsuch’s Luck With Supreme Court Started Long Before Nomination
Almost 25 years later, as Judge Gorsuch, now 49, awaits his own confirmation to the court, his relationship with Justice Kennedy has become a matter of intense interest, as both Democrats and Republicans look for evidence of how it might shape the court’s near future.
The White House hopes the bond matters to Justice Kennedy, too. In choosing Judge Gorsuch to replace Justice Antonin Scalia and floating the names of other former Kennedy clerks for the next Supreme Court vacancy, administration officials have sought to reassure Justice Kennedy, 80, that the court will be in good hands should he choose to retire and open a seat for another, younger justice.
While Judge Gorsuch learned a great deal in Justice Kennedy’s chambers, the lessons seem to have been more personal than political.
“There were a lot of ideologues both left and right, and he wasn’t one of them,” said Stephen F. Smith, who served as a law clerk to Justice Clarence Thomas that same term and is now a law professor at the University of Notre Dame. “He was careful, quiet.”
Judge Gorsuch’s critics say his own mild and courteous manner masks a fierce commitment to a right-wing agenda, and political scientists say he is likely to vote with the court’s most conservative justices rather than with Justice Kennedy. In closely divided cases, Justice Kennedy often holds the crucial vote, and he generally leans right. He wrote the majority opinion, for instance, in the Citizens United campaign finance case.
But in recent years, Justice Kennedy has joined the court’s four-member liberal wing in major cases establishing a right to same-sex marriage, protecting abortion rights and upholding affirmative action.
“It’s safe to say that little of Justice Kennedy rubbed off on him when it comes to certain critical areas of the law,” Nan Aron, the president of the Alliance for Justice, a liberal group, said of Judge Gorsuch.
On the federal appeals court in Denver for more than a decade, Judge Gorsuch has cited Justice Kennedy by name from time to time. But he has been much more likely to cite Justice Scalia.
To his fellow law clerks, Judge Gorsuch was neither particularly dogmatic nor calculating. Instead, interviews with more than a dozen clerks and a review of papers housed at the Library of Congress paint a picture of someone with a dogged work ethic, an understated but appealing presence and a sense of fairness tempered by cautious judgment.
Justice Kennedy taught his law clerks by example, Judge Kavanaugh said, instilling in them an independent frame of mind and a “gentlemanly tone.”
“A lot of us have tried to emulate that in our careers,” Judge Kavanaugh said. “Neil has exemplified that better than anybody.”
Judge Gorsuch arrived at the court in the summer of 1993 in the aftermath of a bruising term. The fallout of a divisive abortion case, Planned Parenthood v. Casey, had left the justices eager to produce a quieter one in its wake.
Judge Gorsuch’s term at the court was not without notable decisions; the court issued significant rulings on discrimination in jury selection, protests outside abortion clinics, voting rights, religious schools and copyright infringement for song parodies. But none qualified as a blockbuster.
Though he worked in the chambers of Justice Kennedy as a “step clerk,” as well as for Justice White (retired justices remain entitled to a clerk), idiosyncratic hiring practices may have helped him.
“Look, there are a hundred people a year that could do the job adequately,” Justice White once said, according his biographer, Dennis J. Hutchinson. “I might as well have someone who’s interesting, and that doesn’t mean the ones the fancy law professors recommend.”
That Justice White was partial to candidates from his home state, Colorado, and who had spent time at Oxford, where the justice had been a Rhodes Scholar, most likely helped Judge Gorsuch’s application stand out, said two law clerks who worked for Justice White, David D. Meyer and John C. P. Goldberg.
“Justice White probably would have seen echoes of himself in a way in Neil,” said Mr. Meyer, who is now the dean of Tulane University Law School.
Todd C. Peppers, who teaches at Roanoke College and has written extensively about Supreme Court law clerks, said Judge Gorsuch’s academic credentials might have glittered just a little less brightly than those of some of the clerks hired by active justices.
“He did not serve as an editor on The Harvard Law Review,” Professor Peppers said. “Moreover, he ‘only’ graduated cum laude — which suggests that his grades might not have been as high as the typical Supreme Court law clerk.”
Even clerks who worked for a single justice remembered a merciless workload. “It was the definition of a 24/7 job,” said Landis C. Best, who worked for Chief Justice William H. Rehnquist and is now a partner at Cahill Gordon & Reindel in New York.
Judge Gorsuch cut an impressive, if not particularly ideological, figure. Surrounded by a class of elite law graduates that included a handful of future federal judges and acclaimed academics, his “quiet intelligence” was notable, said Louis Feldman, who clerked for Justice Scalia that year.
“Some people just have that aura around them,” Mr. Feldman said. “You know this is someone who has the ability and the personality to go far in the legal world.”
Mostly, Judge Gorsuch was affable and unflappable. He was not, by several former colleagues’ accounts, a member of the regular pickup basketball games in the Supreme Court’s fifth-floor gym, known around the building as the “highest court in the land.” But he was a regular at clerk social events and occasional lunches hosted by each of the justices.
“He seemed very calm, measured, thoughtful, polite, gentlemanly — very much like what one notices about him now,” said Eugene Volokh, who clerked for Justice Sandra Day O’Connor and now teaches at the University of California, Los Angeles.
“He fit into the place very easily,” said Judge Kavanaugh, who is himself on the White House’s short list for the next Supreme Court vacancy. “He’s just an easy guy to get along with. He doesn’t have sharp elbows.”
Justice Kennedy, like most justices then and now, assigned his law clerks to a shared labor pool that streamlined the work of reviewing incoming cases to make recommendations about which petitions should be granted.
Judge Gorsuch’s memorandums, which are available in the papers of Justice Harry A. Blackmun, were thorough and fair-minded.
In one, there are glimmers of the light touch that would characterize his later writing. In summarizing a petition from a civil servant fired by the Army, Judge Gorsuch seemed to suppress a smile. “Petitioner discusses at length General William Tecumseh Sherman’s decision to march through Georgia,” he wrote, “and then turns to describe in detail the technology of modern attack helicopters.”
Though his conservative political views were already well developed when he arrived at the court, Judge Gorsuch gave little overt indication of his positions as he researched and discussed cases in Justice Kennedy’s chambers.
“We had a wide range of views, but we all really got along well,” Judge Kavanaugh said of the five clerks that term, who were chosen in part to represent different points on the political spectrum.
When in 2006 Judge Gorsuch joined the United States Court of Appeals for the 10th Circuit, Justice Kennedy administered the oath to him in Denver and delivered a reminder of that principle.
Explaining its significance to the judge’s two young daughters, Justice Kennedy said, “He’s doing it to remind all of us that the first obligation any American has is to defend and protect the Constitution of the United States.”
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