It was a horrific case. A female student had been gang-raped by football players being recruited by the University of Colorado. Now, her lawyers were trying to hold the university partly responsible, arguing it had created a hostile environment for women.
A lower court had already rejected their civil rights argument. As her lawyers prepared to appeal in 2007, they had an overarching concern: a federal appellate judge named Neil Gorsuch.
Newly appointed to the bench by then-President George W. Bush, Gorsuch was known as a fierce conservative whose writings skewered his liberal adversaries. His fellow conservative judges had shown little appetite in previous cases to hold institutions, such as universities, responsible for the conduct of individuals.
"It was crushing news to learn Gorsuch was on the panel," said Baine Kerr, a lead attorney for the rape victim in the case 10 years ago.
Kerr spent weeks preparing for Gorsuch, staging extensive mock hearings to simulate the aggressive interrogation they expected from him.
But on the day of the hearing when Kerr stepped up to the lectern, anticipating Gorsuch to cut him off immediately with questions, the judge stayed silent instead, listening intently. Fifteen minutes into Kerr’s argument, a red light went off signaling that Kerr’s time was up. Gorsuch waved Kerr on.
Over the next hour, Gorsuch steered the conversation with pointed comments – sympathetic for Kerr, barbed for the university’s lawyer.
Lawyers on both sides recalled later that they were dumbfounded.
The appeals court would go on to decide in favor of the victim, sending the case back to a lower court for trial. And the lawsuit was ultimately settled with the university paying her $2.5 million.
Gorsuch’s criticism of Trump may be winning him Democratic support Sean Sullivan, Robert Costa
Senate Democrats sent mixed signals the day after Supreme Court nominee Neil Gorsuch expressed concerns about President Trump’s attacks on the federal judiciary – a sign that the judge’s comments could attract some badly needed Democratic support.
“To whisper to a senator but to refuse to say anything…
Senate Democrats sent mixed signals the day after Supreme Court nominee Neil Gorsuch expressed concerns about President Trump’s attacks on the federal judiciary – a sign that the judge’s comments could attract some badly needed Democratic support.
“To whisper to a senator but to refuse to say anything…
(Sean Sullivan, Robert Costa)
In the weeks since President Donald Trump nominated Gorsuch to fill the Supreme Court vacancy, debate over him has split along predictably partisan lines, with praise from the right and anxious condemnation from the left.
But Gorsuch himself is perhaps not so predictable. An examination of his development from gifted Colorado schoolboy to college firebrand and then staunchly conservative jurist reveals that he is quite capable of surprise.
He grew up in a high-profile Republican family and became infamous in Columbia University’s liberal circles for penning fierce attacks on campus protesters. On the bench, he has subscribed to the same judicial philosophy as the late Antonin Scalia, a conservative icon whom Gorsuch would replace on the court. And Gorsuch’s recent rulings – including a major decision finding that companies could deny employees government-mandated contraceptive coverage on religious grounds – have won him plaudits from the right.
But Gorsuch has also established deep and enduring relationships with liberals he has known since his school days – in some cases the very targets of his pointed attacks. He has won endorsements from gay friends and hired law clerks from the opposite end of the political spectrum. He has argued that the court system shortchanges low-income people and called for making legal services cheaper and courts more accessible. Even the simple writing style of his opinions, which have won wide attention in legal circles, reflects his conviction that the law should be understandable to everyone, lest it favor only the wealthy and well educated.
In his writings, he has denounced liberals for using court decisions to advance "their social agenda."
But Gorsuch has also refused to be pigeonholed himself, saying, "People do unexpected things. Pigeonholes ignore gray areas in the law."
Gorsuch Family contributed photo from Glenn Summers
Justice Antonin Scalia and Neil Gorsuch during a fishing trip in October 2014 near Kremmling, Colorado.
Justice Antonin Scalia and Neil Gorsuch during a fishing trip in October 2014 near Kremmling, Colorado.
(Family contributed photo from Glenn Summers)
Gorsuch’s parents, Anne and David, were lawyers, and they raised their three children on the art of verbal sparring.
The impromptu debates could happen at any time – over dinner in their home in Denver, listening to NPR on the way to school, or while watching the Sunday morning political talk shows. Gorsuch’s younger brother, J.J., said their parents would press them to see different sides of the story, to gain empathy for opponents and refine their own arguments.
"When you expose, at an early age, children to the McLaughlin Group, you see people debating, using their critical reasoning," Gorsuch’s brother said. "You come to the realization that there isn’t just one side or the other that is right. The truth is often in the middle."
In grade school, Gorsuch stood out because of this skill at quickly taking positions and backing them up.
"Other kids were not able to do this," said classmate Gina Carbone, whose mother shared carpooling duties with Gorsuch’s mother. "He was definitely more mature than the rest of us, better informed and more advanced."
Another classmate, Rob Tengler said, "He wouldn’t offer his opinion unless he was asked, but then he always had a whole lot more to say than the rest of us."
At the small private school Gorsuch attended, Christ the King Roman Catholic School teachers drilled into their students the values of character, duty and service. While many students brushed off the moral lessons, Gorsuch seemed to internalize them.
Gorsuch says Trump’s attacks on judiciary are ‘demoralizing’ and ‘disheartening’ Abby Phillip, Robert Barnes, Ed O'Keefe
President Donald Trump’s escalating attacks on the federal judiciary drew denunciation Wednesday from his Supreme Court nominee, Neil Gorsuch, who told a senator that the criticism was “disheartening” and “demoralizing” to independent federal courts.
Sen. Richard Blumenthal, D-Conn., said Gorsuch…
President Donald Trump’s escalating attacks on the federal judiciary drew denunciation Wednesday from his Supreme Court nominee, Neil Gorsuch, who told a senator that the criticism was “disheartening” and “demoralizing” to independent federal courts.
Sen. Richard Blumenthal, D-Conn., said Gorsuch…
(Abby Phillip, Robert Barnes, Ed O'Keefe)
Jonathan Brody, one of his closest childhood friends, said one incident in particular has stayed with him. When they were about 12 years old, Gorsuch borrowed a sleeping bag, and it got damaged or dirty in his care. He grew distraught.
"He was very concerned and upset that his honor and his integrity would be questioned," recounted Brody, who is now a state district court judge in Idaho. "I remember thinking, ‘Maybe I’m missing something. Do I not take this sort of thing seriously enough? Maybe I should.’ "
During grade school, Gorsuch saw his family’s political involvement grow after local Republicans visited their home to recruit his father as a candidate. "You have the wrong Gorsuch," his mother told them. Soon, at age 9, he was going door to door with his mother as she successfully campaigned for the Colorado state legislature. Suddenly, family debates over politics were no longer abstract.
– – –
Anne Gorsuch was a striking politician with jet-black hair and perfect manicures. She wore fur coats and smoked two packs of Marlboros a day – and rarely, if ever, shied away from political combat. The Rocky Mountain News described her this way: "She could kick a bear to death with her bare feet." She quickly earned the honor of "Outstanding Freshman Legislator" from her colleagues and the capitol press corps.
Her conservative politics put her in a group of state lawmakers dubbed the "House Crazies" by critics because of their determination to kill environmental bills, dramatically downsize government and advocate for states’ rights. Her efforts brought her to the attention of the newly elected president, Ronald Reagan. In 1981, he appointed her the first female administrator of the Environmental Protection Agency.
With her marriage already heading toward divorce, she left her husband in Colorado, packed up the kids and moved to Washington, D.C.
She enrolled Gorsuch, a teenager at the time, in a boarding school. At Georgetown Preparatory School in Rockville, Maryland, he swapped the polo shirt, khakis and cowboy boots he wore in Colorado for the school-mandated jacket, tie and dress shoes. Those frequent dinnertime debates with his family were replaced with dining hall meals taken with fellow dormitory boarders.
Gorsuch Melina Mara / The Washington Post
Many of those who knew Neil Gorsuch, above on Capitol Hill earlier this month, during his days as a student noted that he was as affable in person as he was fierce in his writings.
Many of those who knew Neil Gorsuch, above on Capitol Hill earlier this month, during his days as a student noted that he was as affable in person as he was fierce in his writings.
(Melina Mara / The Washington Post)
"It was a little lonely," said Michael Trent, who relocated from California after Reagan named his father as deputy transportation secretary. "We spent a lot of time talking about how different our lives had become and what our parents were doing." Trent would become one of Gorsuch’s closest friends, later serving as best man at his wedding. "We became soul mates because we understood what the other was going through."
Gorsuch’s conservative values brought him to the center of political debates at the high school. He was known as an especially fierce champion of Reagan and the Republican agenda. An entry in Gorsuch’s high school yearbook listed him as founder of the "Fascism Forever Club."
Stephen Ochs, who was faculty adviser to the student government, said the fascism club was a fabrication, merely an extension of the playful goading between conservative and liberal students on the debate team.
"They would use hyperbole," Ochs said. " ‘You’re such a conservative fascist! and ‘You lefty radicals!’ . . . It was good-natured. This was a reference to that. An insider joke."
– – –
As the new head of EPA, Anne Gorsuch wasted no time acting on her ideas for slashing big government and reducing regulations.
To the howls of environmental groups and Democrats, she cut the agency’s budget by 22 percent, dramatically decreased cases and actions against polluters, relaxed Clean Air Act regulations and started hiring staff from the industries the EPA was supposed to regulate. She engendered so much hostility within her own agency that a Doonesbury comic strip depicted an EPA employee on a ledge threatening to jump.
The confrontation over her stewardship of the EPA escalated when Congress launched an investigation into her agency’s mishandling of the $1.6 billion toxic waste Superfund program. Lawmakers demanded she turn over records, which she refused to do, citing executive privilege. As a result, she became the first agency director in U.S. history to be cited for contempt of Congress.
Just 22 months into her tenure, Anne Gorsuch resigned.
It was her son’s sophomore year at Georgetown Prep, and all his schoolmates knew what was happening.
"I remember asking Neil, ‘How’s your mom doing?’ He smiled and said, ‘She’s doing fine, thank you,’ " said Thad Ficarra, a fellow boarder. "It wasn’t a brushoff. I said, ‘Just so you know, your mom is in my prayers.’ He said, ‘I really appreciate that.’ . . . He was grateful for the support, but he didn’t wallow in it."
Trump insists senator ‘misrepresented’ Gorsuch’s comments lamenting Trump’s attack on judge Erica Werner and Ken Thomas
President Donald Trump lobbied Democrats and Republicans to back his Supreme Court nominee on Thursday even as he escalated his attacks against one of their Senate colleagues for disclosing that Judge Neil Gorsuch found the president’s criticism of the judiciary “demoralizing and disheartening.”
…
President Donald Trump lobbied Democrats and Republicans to back his Supreme Court nominee on Thursday even as he escalated his attacks against one of their Senate colleagues for disclosing that Judge Neil Gorsuch found the president’s criticism of the judiciary “demoralizing and disheartening.”
… (Erica Werner and Ken Thomas)
Whatever Gorsuch suppressed at school, he expressed at home.
In her memoir "Are You Tough Enough?," his mother wrote about how upset the episode had made her son. "Half-way through Georgetown Prep, and smart as a whip, Neil knew from the beginning the seriousness of my problems."
She recalled him saying, "You should never have resigned. You didn’t do anything wrong. You only did what the President ordered. Why are you quitting? You raised me not to be a quitter. Why are you a quitter?"
But the traumatic experience didn’t derail Gorsuch. He became a national champion in debating. And it didn’t sour him on politics. It made him shrewder and more determined.
At the end of his junior year, he set his sights on becoming student body president. Gorsuch picked a running mate who could deliver the jock vote and assembled a team of 10 students to turn up at his speeches and debates and applaud him on cue, according to his running mate John Caldwell. "He was incredibly strategic."
In 1985, when Gorsuch arrived at Columbia University in New York, the campus was a hotbed of liberal activism and protest.
It didn’t take long for him to turn his journalistic ire on the targets all around him. In one column for the student newspaper the Spectator, Gorsuch mocked the "muddled thinking" of protesters who seemed to "have a monopoly on righteousness." In another news story, he criticized their efforts to block the eviction of a tenant from an apartment owned by Columbia, dismissing the protesters as publicity hounds.
As a freshman, he and three other students established a conservative newspaper, the Fed, named in honor of Federalist Paper authors and Columbia alumni Alexander Hamilton and John Jay. In the first issue, Gorsuch and his co-founders explained their mission: "Our voice will be an aggressive but considered one, one that may make you think or may just make you angry. But it will be heard, and it will not be shouted down."
Gorsuch also promoted his conservative ideas by running for Columbia’s student senate.
That year, the student newspaper asked every candidate whether the U.S. Marine Corps should be allowed to recruit on campus. While most candidates brought up the military’s discrimination against gays as a problem, Gorsuch cited the Marine recruiters’ First Amendment right to free speech.
Durbin meets with Gorsuch, says he needs to hear more Katherine Skiba
Sen. Dick Durbin said he was withholding judgment on Neil Gorsuch after meeting with the Supreme Court nominee Tuesday.
“I’m anxious for a clear statement that he respects the judicial branch of government at this perilous constitutional time,” said Durbin, the No. 2 leader for the minority Democrats…
Sen. Dick Durbin said he was withholding judgment on Neil Gorsuch after meeting with the Supreme Court nominee Tuesday.
“I’m anxious for a clear statement that he respects the judicial branch of government at this perilous constitutional time,” said Durbin, the No. 2 leader for the minority Democrats…
(Katherine Skiba)
"The question here is not whether ‘the Marines should be allowed to recruit on campus’ but whether a University and its community . . . has the right or obligation to determine who may speak on campus or what may be said," Gorsuch wrote.
At Columbia, and in the years that followed at Harvard Law School and Oxford University, Gorsuch enjoyed engaging on the hot-button issues of the day.
One issue in particular became a kind of laboratory for his conservative explorations: the sanctity of life and how to define it. At the time, Michigan doctor Jack Kevorkian was making national headlines by championing the right to die for terminal patients through physician-assisted suicide. This and similar controversies made a deep impression on Gorsuch. He was eager to debate assisted suicide with fellow law students at Harvard, and it became the subject of his PhD thesis after he won a Marshall Scholarship to Oxford.
In his dissertation, later published as a book entitled, "The Future of Assisted Suicide and Euthanasia," he makes his legal case against assisted suicide and argues for the "inviolability" of human life.
It is the closest Gorsuch has ever come to revealing his thoughts on abortion, in his academic writings as well as in his judicial opinions. But with abortion continuing to be one of the marquee issues confronting the Supreme Court, the book has been cited by Gorsuch’s conservative backers as reason to rally behind him, and by abortion rights advocates as the basis of their worst fears.
– – –
Many of those who knew Gorsuch during his student days noted that he was as affable in person as he was fierce in his writings.
As a member of a Harvard social club called Lincoln’s Inn Society, Gorsuch met a classmate named Phil Berg, sparking a friendship that has lasted 30 years.
A few years after they met, Berg decided to come out as gay, and Gorsuch was one of the first friends he told.
"It was a time that was very fraught and difficult for me," Berg said, recalling his conversation with Gorsuch at a dinner gathering in the early 1990s. "He – in a very sincere way, without skipping a beat – was supportive and has been since then. . . . I remember how much of a relief it was that it was not an issue."
When Berg and his boyfriend, Ronald Riqueros, got married in 2012, Gorsuch sent them a note telling them to consider his house their house if they are ever in Colorado.
Berg said Gorsuch was constantly establishing such connections with others, regardless of their political philosophy.
"He would have a real conversation with people from the top professors to waiters and waitresses at a restaurant. He sort of put himself in their shoes," he said. "He made you feel like you were the only person in the room when he was talking to you."
Classmates and acquaintances – from his time in college, law school and Oxford – uniformly describe him in such effusive terms.
"There are a whole lot of people at Harvard Law School who are interested in talking and want you to think that they’re the most important person in the room," said Ken Mehlman, his Harvard housemate who later became chairman of the Republican National Committee. "But Neil was very curious about other people and learning what they had to say."
Mehlman, like Berg, would later come out to Gorsuch as gay and also recalled the sensitive way he took the news.
"I would be surprised if any of our classmates had an unkind word to say about him," said Norm Eisen, a classmate who would later become a high-ranking official in the Obama administration.
– – –
Gorsuch returned in 1995 from Oxford with several surprises in store.
While in England, he met his future wife, Louise, a champion equestrian on the Oxford riding team. A year and a half after their first date, they were married.
"I laughed," said David Jarden, a college friend. "Neil went off to Oxford to get a PhD in law. You think of Oxford as the long, black gowns and the ancient buildings. But, he came back with a wife and a horse."
Gorsuch clerked with Supreme Court Justices Byron White and Anthony Kennedy. With his impressive credentials, Gorsuch decided against the predictable route of joining a prestigious law firm and instead opted for the excitement of a legal start-up. He signed on with the boutique Washington firm of Kellogg, Huber, Hansen & Todd. The two-year-old firm was so new and small that a year earlier, when a client had requested a meeting at their offices, one of the partners ran out to buy furniture, returning with a mismatched dining set to serve as the conference table.
Once on board, Gorsuch had to decide exactly what kind of lawyer he wanted to be. He could focus on appellate law, funneling his energy into writing legal briefs, or go the academic route and counsel clients on policy matters. But Gorsuch chose instead to apprentice under one of the partners, Mark Hansen, a trial lawyer who spent his days in the courtroom crucible of litigation.
"It was a risk for someone like Neil, from the establishment life, who wasn’t necessarily a swashbuckler. He looked like he had never walked against a Don’t Walk sign," said Hansen. "Not everyone likes the confrontation that comes with litigation. Some people used to winning their whole lives don’t like the risk of losing. You could tell it made him uncomfortable. He pushed himself."
The same empathetic, affable manner that had endeared Gorsuch to liberal classmates despite his firebrand conservatism now helped him put clients at ease. His plain, Midwestern way of talking came across to juries as down-to-earth.
In his first case as a lead attorney, Gorsuch represented a property owner suing a construction company for stealing gravel, Hansen recalled.
"It’s not complicated. Here’s what they did to my poor client," Gorsuch told the jury in closing arguments. He reached into his pants pockets and turned them inside out. "They picked his pocket."
A jury member ran up to Gorsuch after the trial, Hansen said, and compared him to Perry Mason.
For a decade he worked under and with Hansen. Then, over beers one evening after an especially tough day in court, he told Hansen that he wanted to accept an offer to work in Bush’s Justice Department. "At the time, I thought he would do it for a couple of years and come back," Hansen said.
But after just a year and half, Bush tapped Gorsuch to become a federal appellate court judge.
– – –
As a judge on the U.S. Court of Appeals for the 10th Circuit based in Denver, Gorsuch has won a following in legal circles for his clear, often entertaining style of writing opinions.
Gorsuch’s signature move is to open his opinions with yarn-spinning summaries of the case that draw the reader in.
"If a seventh grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office?" he began one decision about a 13-year-old who was arrested. "Maybe. But then again, maybe that’s too old school. Maybe today you call a police officer."
He began another opinion about an insurance dispute with this: "Haunted houses may be full of ghosts, goblins, and guillotines, but it’s their more prosaic features that pose the real danger."
A few years into his tenure, Gorsuch started using contractions, like "would’ve" and "could’ve." His clerks teased him about it, trying to find precedents for such informal language.
Former clerks say that Gorsuch’s insistence on clear writing reflects his convictions about making the law accessible and understandable to everyone.
He has hired clerks from both liberal and conservative backgrounds, and last week, all of them – except two currently clerking at the Supreme Court – signed a bipartisan letter praising his independence.
In speeches, Gorsuch has criticized the complexity of the American legal code, arguing that there are so many criminal laws and they are so complicated that it can be hard for people to understand what is and isn’t a crime. In an article titled "Access to Affordable Justice" published by the Duke Law Center, he called on bar associations and educators to make legal services cheaper and courts more accessible to low-income litigants by ceding more work to non-lawyers with legal training.
In 2007, after sitting on a panel in which he believed a prisoner’s lawyer had missed arguments critical to his clients, Gorsuch helped launch an effort to improve the representation of low-income prisoners in death penalty cases. He and another judge traveled to Oklahoma, where many death penalty cases were arising, to persuade lawyers with good track records to take such cases and convened a tutorial on how such cases should be presented before an appellate court.
– – –
In the weeks since Gorsuch was nominated for the Supreme Court, his judicial philosophy has been widely compared to Scalia’s.
Like Scalia, Gorsuch is a proponent of originalism – a belief that judges should try to interpret the Constitution’s words as they were understood by its authors. But more importantly when it comes to laws, Gorsuch, like Scalia, is a textualist, who believes that only the actual words written in a statute matter – not legislators’ intent or any potential consequences of a judge’s decisions.
Gorsuch spelled out his philosophy in his colorful conclusion on the case of the 13-year-old fake burper.
"Often enough the law can be ‘a ass – a idiot,’ " he wrote, quoting Charles Dickens. "And there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels."
That approach has drawn its share of detractors, especially among liberals.
"The argument of originalists like Gorsuch is always ‘Well, I’m just following the law.’ But it’s intellectually dishonest to pretend you can somehow divine the original founders’ intent," said Ayesha Khan, a former longtime legal director for Americans United for Separation of Church and State who has written many amicus briefs in cases ruled on by Gorsuch.
"It’s also a notable coincidence that the originalist, textualist philosophy always paves the way for religious messages by government or strikes down efforts to protect women’s reproductive rights," Khan said. "It’s a way of rationalizing activist tendencies."
Put more succinctly, Nan Aron of the liberal Alliance for Justice said, "In spite of what the White House would like to have us believe, he’s a dangerous choice."
By contrast, 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.
For their part, the church’s leaders alluded in a recent newsletter and Sunday sermon to the political divide between most of its parishioners and Gorsuch. But they added that Gorsuch’s views are not as narrow or predictable as some might think – or fear.
"I am privileged to have spent enough time with the family to come to know Neil as a broad-thinking man, one eager to listen and learn, and one thoughtful in speaking," wrote the Rev. Susan Springer. "Those foundational qualities are ones I would pray that all public servants in any leadership role in our country might possess."
The Washington Post’s Alice Crites and Julie Tate contributed to this story.
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