Federal Courts and Nominations

Gorsuch’s speeches raise questions of independence, critics say

By Robert Barnes

No member of Congress was more essential to Neil M. Gorsuch’s ascent to the Supreme Court than Senate Majority Leader Mitch McConnell, who blocked President Barack Obama’s nominee for the job and then spearheaded the confirmation process for Gorsuch.

Last week found McConnell (R-Ky.) and Gorsuch traveling the Bluegrass State together for a tour of the senator’s alma maters. “President Trump simply could not have made a better nominee,” McConnell said in introducing Gorsuch before a packed-house lecture at the McConnell Center at the University of Louisville.

Critics likened it to a “victory lap” for McConnell and said it amplified questions that were already being asked about Gorsuch’s independence from the Republicans who supported him in a highly partisan confirmation battle.

Trump and Republican leaders have celebrated Gorsuch’s confirmation as perhaps the signature accomplishment of the new administration, one that restored a conservative majority on the Supreme Court.

Now, as Gorsuch is set next week to begin his first full term on the court, he has accepted an invitation to speak to a conservative legal scholarship group Thursday at Trump International Hotel in Washington. He will be speaking to the Fund for American Studies, a nonprofit education organization that says it teaches “limited government, free-market economics and honorable leadership” to students at home and abroad.

The Pennsylvania Avenue hotel is at the center of a lawsuit on whether commercial payments to Trump’s companies improperly profit the president.

And in November, the newest justice will be the keynote speaker at the annual gala of the Federalist Society, the conservative legal society that supplied Trump with a list of potential Supreme Court nominees, including Gorsuch.

His supporters say Gorsuch’s appearances are little different from those other justices make. Conservative justices are the normal dinner honorees at Federalist Society events, for instance, while liberal justices make regular appearances at the rival American Constitution Society.

But Gorsuch’s detractors see the speeches as hand-delivered thank-you notes, undermining attempts to present himself as an independent-minded justice.

“All of this indicates that he’s just ethically tone-deaf,” said Deborah L. Rhode, a Stanford University law professor and highly cited authority on legal ethics.

Elizabeth Wydra, president of the liberal Constitutional Accountability Center, agreed.

“Whether or not this breaks any explicit ethics rules, it is certainly not the behavior you’d expect from someone trying to ensure the appearance and reality of judicial independence and impartiality,” she said. “Chief Justice [John] Roberts likes to say that there aren’t Democratic or Republican justices. Gorsuch traveling around with the Republican Senate majority leader in what seems to be a sort of victory lap appears disturbingly out of step with the chief’s sentiment.”

Through a court spokeswoman, Gorsuch declined to respond to the criticism.

The first question Gorsuch was asked by senators at his confirmation hearings earlier this year concerned judicial independence, and the issue was a large part of his presentations in Louisville and here at the University of Kentucky College of Law, where McConnell received his degree.

“I don’t think there are red judges, and I don’t think there are blue judges. All judges wear black,” Gorsuch said at the Lexington event, at which, coincidentally, Roberts was last year’s speaker. “And we try our level best to be neutral and to ensure fair process, due process to all persons who come before us.”

Some conservatives say the criticism of Gorsuch is unfair.

“There aren’t any special rules that apply to a justice during his first year on the court,” said Edward Whelan, president of the Ethics and Public Policy Center. “Some critics seem to be indulging their own sensitivities rather than judging Justice Gorsuch by the same neutral rules that apply to other justices.”

What might really be troubling Gorsuch’s critics, said Dennis Hutchinson, a University of Chicago law professor and student of the Supreme Court, are his conservatism and assertiveness.

“I don’t think most Supreme Court justices make a concerted or visible effort to establish themselves as independent,” he said.

Gorsuch, formerly a judge on the U.S. Court of Appeals for the 10th Circuit in Denver, joined the court in April and sat with his colleagues for only one round of oral arguments.

But he wrote separate opinions highlighting even minor differences with the majority opinions issued, and his decisions made clear he was more conservative than the rest of the court on issues such as gun control, more skeptical about the reach of the court’s decision finding a right for same-sex couples to marry, and willing to let Trump’s ban on travel from several majority-Muslim countries go into effect without the caveats his fellow justices added.

The legislative muscle by McConnell and abundant praise from Trump is partly why Gorsuch’s appearances are seen through a partisan lens.

Within hours of Justice Antonin Scalia’s death in February 2016, McConnell said that the Republican-led Senate would not vote on an Obama nominee for the job, insisting that the opening remain for the next president.

“One of my proudest moments was when I looked at Barack Obama in the eye and I said, ‘Mr. President, you will not fill this Supreme Court vacancy,’ ” McConnell told his constituents.

That left Obama’s nominee, Judge Merrick Garland, hanging, and his chances ended with Trump’s election.

“McConnell destroyed Senate norms to make sure Gorsuch got his Supreme Court seat,” Nan Aron of the Alliance for Justice, an ardent critic of Trump’s judicial nominees, said in a statement after the Kentucky trip. “Neil Gorsuch is doing his best to erase any doubt that he is anything other than a wholly partisan actor.”

Trump routinely mentions Gorsuch as a campaign promise made good.

“In my first 100 days — and I don’t think anybody has ever done more, or, certainly, not much more — I appointed and confirmed a Supreme Court justice in the mold of the late, great Antonin Scalia, and now Justice Gorsuch has a seat on the United States Supreme Court,” Trump told one conservative audience in June. “Made a promise.”

An assortment of interest groups has called on Gorsuch not to speak at the Trump hotel. The hotel is the focus of a lawsuit alleging that payments to Trump’s companies violate the Constitution’s emoluments clause, which forbids federal officials from accepting payments from foreign governments and compensation beyond their salaries from the federal government or the states.

Facing calls to divest his business interests, Trump turned over management of the Trump Organization to his two oldest sons and vowed to reap no hotel profits during his presidency. But against the advice of top federal ethics officials, he has retained his ownership stake in the hotel, allowing him to eventually profit from the business.

The Fund for American Studies said it secured the location for the speech before inviting Gorsuch. Stanford’s Rhode argued that “Supreme Court justices have leverage” and that Gorsuch could have agreed to the speech only if it were held elsewhere, or scheduled for another meeting of the group.

But Steven Lubet, an ethics scholar at Northwestern’s Pritzker School of Law, wrote on a professional blog that he was not concerned.

“Any relationship between a single event and the Emoluments Clause litigation is far too tenuous to implicate Gorsuch’s impartiality,” Lubet wrote.

Jonathan Adler, a Case Western University law professor who wrote a column in The Washington Post defending Gorsuch’s speech at the hotel, said the new justice’s appearances fit well within the standards set by others, including the court’s liberals.

“Is this any different from speeches and events Justice [Ruth Bader] Ginsburg attends on a regular basis?” Adler asked in an interview with The Post, adding that Gorsuch’s schedule “might be a little unusual for a new justice, but I don’t think that’s out of order.”

As for the content of Gorsuch’s speeches, conservatives would be reassured from the justice’s remarks in Kentucky that they had found a replacement as close to Scalia as possible.

Like the justice he replaced, Gorsuch endorsed “originalism,” which he defined as “the idea that when interpreting the Constitution we should look to history, to what the document would have been understood to mean to members of the public at the time of its ratification.”

Though tall and lanky, while Scalia was not, and so soft-spoken his audiences leaned in to hear him, he seemed to channel the late justice when describing what he said should be a judge’s modest role and deference to elected representatives of the people.

“Who would seriously entrust a handful of unelected, life-tenured lawyers like me to make predictive judgments about optimal social policy for the future in a very large country like ours?” he asked.

He told his audiences that he has moved into Scalia’s old chambers and even taken possession of the huge stuffed elk head, “Leroy,” that dominated one wall.

“The truth is I am delighted to share space with Leroy because it turns out we share quite a lot in common,” Gorsuch said. “We’re both native Coloradans. We both received a rather shocking summons to Washington, D.C. Neither of us is ever going to forget Justice Scalia.”

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