Judge Gorsuch’s Record Raises Questions about Ability to be Independent: Shows He is a Republican Loyalist and Proponent of Executive Power

March 21, 2017

The Trump Administration has shown unprecedented disregard for the rule of law and the role of an independent judiciary, making the need for judicial independence greater than ever.  Judge Gorsuch’s record, however, is of loyal fidelity to conservative, Republican causes.  Documents from the Bush Administration show that he was involved in supporting that administration’s assertions of broad and unchecked executive power.  And on the bench, Judge Gorsuch has eschewed judicial restraint to side with a Republican executive. This record provides no confidence that he would stand up to President Trump or any other conservative President’s agenda when it crosses the legal line.

Judge Neil Gorsuch has a Lifelong Record of Fidelity to Republican Political Activism

Judge Gorsuch’s conservative activism dates to his time in college and law school.

  • In college, he founded a newspaper, The Federalist, which published “rabidly conservative” articles during his tenure, according to a history of the paper.   
  • He also wrote columns for the college paper in which he derided “progressives” and the causes they were championing at the time—including divestment from apartheid South Africa.
  • After law school, he clerked for conservative judges such as David Sentelle on the DC Circuit Court and Justices White and Kennedy on the Supreme Court.
  • Throughout his legal career, he has been affiliated with the conservative Federalist Society, including being listed as an “expert” on its website

Documents from the Department of Justice and Bush Administration Library demonstrate that Judge Gorsuch was viewed as a Republican party loyalist.  The documents demonstrate that his selection for the Principal Deputy Associate Attorney General and his subsequent nomination for his seat on the Tenth Circuit were influenced by his conservative credentials and party loyalty.

  • In November 2004, Gorsuch contacted Matt Schlapp, George W. Bush’s political director (who is now the head of the American Conservative Union and recently interviewed Reince Priebus and Steve Bannon at CPAC), to express his interest in a position in the administration.  In his email to Schlapp, Gorsuch highlighted the following:

I spent some time in Ohio working on the election.  What a magnificent result for the country.  For me personally, the experience was invigorating and a great deal of fun.  And the experience rekindled my interest in public service and a strong desire to work for this Administration.  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. . . . As a result, I’ve updated my resume to include my latest political (and other) activities and attached it below.[i]

Gorsuch’s resume attached to the email lists the following political activities:

Ohio Bush-Cheney volunteer, 2004 campaign (assisted in Help America Vote Act training and compliance activities for eastern and central Ohio counties).  Co-Director, Virginia Lawyers for Bush-Cheney. Bush-Cheney Marshal. Republican National Lawyers Association, Co-Chairman of Judicial Nominations Task Force (2001-02).  Cited for Distinguished Service to the United States Senate for work in support of President Bush’s judicial nominees by the Senate Republican Conference.  Worked on Republican campaigns since 1976, including

Reagan-Bush, Bush-Quayle.  Intern, U.S. Sen. William Armstrong (R-CO).  U.S. Senate Republican Page.[ii]

  • In March 2005, after he had interviewed for the Principal Deputy Associate Attorney General spot, Gorsuch emailed Ken Mehlman, asking him to put in a good word.[iii]  In response, Mehlman sent a note to White House official Sara Taylor, recommending Gorsuch for the position and noting, “Neal [sic] is a wonderful guy—was my law school roommate; did the 72-hour effort in Ohio for us and was part of Lawyers for Bush; is incredibly smart.  Would you mind checking on this?  He is a true loyalist (and a good, strong conservative).[iv]
  • When a vacancy opened on the Tenth Circuit in 2006, the initial set of finalists—as reported by the Denver Post on January 10, 2006—were all women.[i]  But on January 12, 2006, Anschutz’s lawyer sent a letter to Harriet Miers “at the request of Philip F. Anschutz to suggest that the President consider nominating Neil M. Gorsuch” to the Tenth Circuit.[ii] 

Judge Gorsuch Worked to Advance the Bush Administration’s Broad, Dangerous View of Unchecked Executive Power

During his tenure at DOJ, Gorsuch was involved in defending the Bush administration’s “Terrorist Surveillance Program” (TSP). The program, which was initially secret, enabled the NSA to engage in warrantless surveillance targeted at non-U.S. persons overseas, but this surveillance also captured some communications made by Americans or other individuals in the United States.[v]  The Executive Branch implemented this program without congressional approval.[vi]  It was a dispute (before Gorsuch’s time at DOJ) about the legality of this program that led to the now-infamous confrontation between then-Deputy AG Jim Comey and Alberto Gonzales at Attorney General Ashcroft’s hospital bed. [vii]  

  • Documents suggest that Gorsuch pointed to a broad view of executive authority to defend the legality of the program once it became public.  A series of emails from January 2006 shows that Gorsuch worked with high-ranking White House personnel to draft an op-ed that ran in USA Today.[viii]  That op-ed discussed the White House’s legal justification for the TSP, asserting, among other things, that the program was justified by the President’s inherent constitutional authority and the Authorization for Use of Military Force.[ix]  Again, the op-ed stated in part:

…From World War II to the present, presidents have employed their constitutional authority to conduct surveillance on foreign agents without court order…

President Bush's program, like those before it, has proven its value by foiling deadly plots on our soil. Nor has the president acted alone. He has kept congressional leaders advised of the wiretapping program, and Congress itself expressly authorized the use of “all necessary and appropriate force” against the terrorists….

President Bush has said that he will use every lawful means to prevent another attack. History would not forgive us if we did anything less.[x]

These arguments are eerily similar to Trump adviser Stephen Miller’s assertion, in response to a federal judge striking down the travel ban, “A district judge in Seattle cannot force the President of the United States to change our laws and our Constitution because of their own personal views.  The President has the power . . . to suspend the entry of aliens when it’s in the national interest.”  (Washington Post, 2/12/17)

  • When Attorney General Gonzales appeared before the Senate Judiciary Committee to defend the program, Gorsuch drafted testimony for him in which he advanced a broad reading of executive power especially in the realm of national security
  • In January 2006, Gorsuch recommended that Attorney General Gonzales testify before the Senate Judiciary Committee to defend the legality of the TSP.[xi]  Gorsuch wrote “the AG’s opening statement” for that hearing.[xii] 
  • One of his initial drafts of the statement cited the President’s Commander in Chief authority and further stated that “Article II also . . . makes the President . . . ‘the sole organ of government in the field of international relations.’  These authorities are vested in the President by the Constitution and they are inherent to the office.  They cannot be diminished or legislated away by other co-equal branches of government.”[xiii] That language was later removed after objections were raised by Solicitor General Paul Clement.[xiv] 
    • The testimony of the Attorney General about the program, which Gorsuch helped prepare, was later determined by the DOJ Inspector General to have been “confusing, inaccurate, and had the effect of misleading those who were not knowledgeable about the program.”[xv]

At DOJ, Gorsuch was also involved in efforts to prohibit federal courts from hearing cases involving individuals detained by the US government at facilities such as Guantanamo Bay. 

  • In late 2005, Gorsuch helped coordinate DOJ’s involvement in drafting legislation that would strip federal courts of jurisdiction over habeas petitions filed by detainees at Guantanamo Bay, which would later become the Graham amendment.  During that time, DOJ was developing its response to the Supreme Court’s decision in Rasul v. Bush,[xvi] which held that Guantanamo detainees had a statutory right to file habeas petitions under 28 U.S.C. § 2241.  Several important detainee cases were pending in various federal courts, including Hamdan and Boumediene, and a statutory fix might have led to their dismissal. 

On the Bench, Judge Gorsuch Has Shown Disturbing Deference to an Executive with a Right-Wing Agenda

Judge Gorsuch reached beyond what the parties requested in order to allow the Republican Governor of Utah to strip funding from Planned Parenthood.

  • In 2016, Judge Gorsuch dissented from a 10th Circuit en banc ruling in Planned Parenthood v. Herbert that declined to reconsider a three-judge panel’s decision granting Planned Parenthood a preliminary injunction.[xvii]  The issue in the case was whether the court should stop the Governor of Utah from blocking Planned Parenthood’s funding in response to the misleading undercover videos a right-wing group orchestrated in 2015. 
  • Judge Gorsuch would have had the court intervene to allow the Governor to block the funds, even though neither the state of Utah nor Planned Parenthood had sought en banc review.  Judge Gorsuch’s desire to have the court intervene was based on his view that the lower court should have accepted Governor’s assertion that the funding denial was not retaliation, despite the fact that the district court and the three-judge panel disagreed, and a majority of the en banc 10th Circuit did not want to intervene. 

His early record on the lower court bench has played out just as one would expect: his decisions have been consistently conservative, siding with right-wing causes like limiting access to contraception, increasing corporate power, and limiting campaign finance laws.  His fidelity to right-wing dogma raises serious questions about whether he would serve as a viable check on the out-of-control executive who appointed him: President Trump.

[i] Email for Matthew A. Schlapp from Neil M. Gorsuch, Ohio (Nov. 15, 2004), Exchange_1_2004_to_5_2005 (OPEN IN PART), p. 2.

[ii] Neil M. Gorsuch Resume, Exchange_1_2004_to_5_2005 (OPEN IN PART), p. 5.

[iii] Email for Ken Mehlman, from Neil Gorsuch, FW: DOJ Spot (Mar. 9, 2005), Exchange_1_2004_to_5_2005 (OPEN IN PART), p. 17.

[iv] Email for Sara Taylor, from Ken Mehlman, FW: DOJ Spot (Mar. 9, 2005), Exchange_1_2004_to_5_2005 (OPEN IN PART), p. 17.

[i] Alicia Caldwell, Colorado Trio Eyed for U.S. Appeals Bench, Denver Post, Jan. 10, 2006, available at http://www.denverpost.com/2006/01/10/colorado-trio-eyed-for-u-s-appeals-bench/..

[ii] Letter for Harriet E. Miers, White House Counsel, from Bruce F. Black, Re: Neil Gorsuch (Jan. 12, 2006), Textual (OPEN IN WHOLE) p. 54.

[v] See Bush Lets U.S. Spy on Callers Without Courts, N.Y. Times (Dec. 16, 2005), http://www.nytimes.com/2005/12/16/politics/bush-lets-us-spy-on-callers-without-courts.html; Surveillance Net Yields Few Suspects, Washington Post (Feb. 5, 2006), http://www.washingtonpost.com/wp-dyn/content/article/2006/02/04/AR2006020401373.html.

[vi] Id.

[viii] Email for Neil Gorsuch, Harriet Miers, and Brett Gerry from Brett Kavanaugh, status (Jan. 16, 2006), DOJ_NMG_ 0150943; Email for John Elwood, et al., from Neil Gorsuch, FW: USA Today Update (Jan. 16, 2006), DOJ_NMG_ 0150887; Email for Neil Gorsuch from Harriet Miers, RE: USA Today Update (Jan. 16, 2006), DOJ_NMG_ 0150937.

[ix] See Robert McCallum, Americans Deserve No Less, USA Today (Jan. 17, 2006).

[x] Id.

[xi] Email for Brett Gerry from Neil Gorsuch, RE: AP – Attorney General to testify at Senate hearing on NSA domestic spying program, DOJ_NMG_ 0150781.

[xii] Email for [redacted] from Neil Gorsuch, RE: Journal Piece (Feb. 7, 2006), DOJ_NMG_0152612 (attaching DOJ_NMG_0152613); see also DOJ_NMG_ 0152515; Email for Jean Card from Neil Gorsuch, RE: Opening Statement for hearing (July 7, 2006), DOJ_NMG_0163881.  After the hearing, Kyle Sampson sent a transcript of Gonzales’s testimony to Gorsuch for his review, noting, “Here’s a transcript of the oral.  Grant is up here w/ us, but I’ll see if he can get you the Word file.”  Email for Neil Gorsuch from Kyle Sampson, Fw: IN CASE YOU MISSED IT: Attorney General Gonzales on the NSA Terrorist Surveillance Program (Feb. 6, 2006), DOJ_NMG_ 0152546.

[xiii]  2-3-2006 Gonzales Stmt Draft 1, SJC DOJ Gorsuch 000096.

[xiv] Email for Neil Gorsuch from Paul Clement, RE: (Feb. 4, 2006) [no Bates stamp].

[xv] DOJ Inspector General, Unclassified Report on the President’s Surveillance Program, Report No, 2009-0013-AS, at 36-37 (July 10, 2009), https://oig.justice.gov/special/s0907.pdf.

[xvi] 542 U.S. 466 (2004).

[xvii] Planned Parenthood Utah v. Herbert, 839 F.3d 1301 (2016).