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tv   Former Colleagues of Supreme Court Nominee Neil Gorsuch Discuss His Career...  CSPAN  March 15, 2017 9:04am-10:01am EDT

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>> the marriage of this medium and our open debate has the potential, mr. speaker, to revitalize representative democracy. >> in 1986, launched c-span 2 to carry the senate live. all of our congressional coverage as archived and searchable for free. radio and online provided as a public service of cable and satellite affiliates across the nation. coming up in about an hour, the senate judiciary committee will look into fraud involving k1 visas. that would allow fiances to enter the u.s. we'll be live at 10:00 a.m. eastern. until then, a conversation on supreme court nomination neil gorsuch. confirmation hearings for the judge are scheduled for next
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week. >> welcome to the heritage foundation in the douglas and allison and those who are viewing this on c-span as well. for those in-house, we asked the kind courtesy of seeing mobile devices turned off. online, they're welcome to send questions or comments at any time, simply e-mailing
9:06 am and we'll, of course, post the program following today's presentation on the heritage home page. leading our discussion is elizabeth slaterly. the legal and judicial studies. mrs. slatery writes about supreme court, separation of power, judicial nominations and a variety of constitutional issues. she also manages heritage's appellate "e.tape apell apellete ethicacy. >> president donald trump selected neil gorsuch, a judge on the 10th to fill the vacancy left by scalia's passing last year. established himself as a thoughtful jurist who pays
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attention to the meaning of laws and the constitution. he has an impressive judicial record, sterling academic credentials and years of government service including clerking for justice anthony kennedy but what kind of judge is judge gorsuch? we'll hear from former law clerks today but first, his former law partner and boss quoted as saying gorsuch was born with silver hair and inexhaustible store of winston churchill quotes. mark hanson is from kellogg hanson. with more than 30 years of experience, mark is the lead trial counsel representing prominent clients such as the u.s. government, the kingdom of saudi arabia and then general electric and verizon. tried more than 30 cases to verdict and argued more than 20 appeals. mark previously served as assistant u.s. attorney for the southern district of new york and law clerk to judge william timbers at the second circuit court of appeals and a graduate of dartmouth and harvard law
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school. >> thank you very much, elizabeth, and good afternoon, everybody. i wrote a title for my little talk today. it's about 20 minutes. the title is, i knew him when. because we all know the phenomenon of somebody who hits a home run to win the world series or wins the powerball, and the emergence from security and suddenly asked the question, who is this person? what do we know? somebody nominated to the united states supreme court, that's an extraordinary thing and when neil gorsuch becomes that no, ma'am nominee, all eyes turn to neil. reporters track back to the old days, the little people like me who knew him when, what neil was like before he became famous. and you know, me like everybody else, we like to get a little
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reflected glory. i like to hear a story from a legal academic. he argued a prominent case for the haitian rev ewe gfugees. it was surrounded by tv cameras and reporters all hanging on his every word and from stage right, the figure came striding toward him saying, i want to congratulate my best friend, my good friend, the man who worked so tireless with me to save the haitian refugees, my brother, my friend, leans close, puts his arm around friend, gets in the picture frame and turns to him and says, what's your name? i know neil gorsuch and his name. i worked with him for a decade. we practiced civil trial law together across the united states and i'm happy to be here to tell you what that experience might suggest to you and the public about the kind of supreme court justice neil gorsuch is
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likely to be. unlike our president who's turned out either four years from now or 8 years from now, can't serve longer than 8 years, neil gorsuch who's being appointed nominated and confirmed could be there for 40 or 50 years. i mean, think about it. neil is only 49 years old and he's in great physical condition. do not let that gray hair dye fool you. he's been applying that since georgetown prep to be considered for a supreme court nomination. that's how careful neil gorsuch is. obviously, the best clue is what kind of justice neil gorsuch will be are in the 800 published opinions issued as a judge and court of appeals to the tenth circuit and with us today, three distinguished former law clerks and judges, soon to be justices to describe what those opinions tell us about his way of being a judge. i'll tell you we've been fortunate enough, in our firm, to work with two of the three.
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sorry we didn't his omiss odut think third. we sent them off to the supreme court and a virtuous cycle. he gets great people and help them do a great job an on the supreme court, he's likely to do the same thing. think of it. written 800 majority opinions. that's like 80 a year. the supreme court takes up roughly 80 merit cases a year. so we learn a lot from the opinions and neil writes well. there's a lot of commentary. he is a good, careful writer and tells us what he thinks, why he thinks it. you could pull down those opinions and many scholars have done or will do. i want to tell you, i'll steal the thunder. not all are versus madison but the homes case with the pivotal question of whether a student
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has a right to burp in class and scholars can consider whether burping is a right and in a reasonable time, place, and restrictions that apply to the right but joking aside, we have an addition to neil's 800 opinions, a decade as service as a private lawyer. we know neil gorsuch was a serious committed trial lawyer with an active nationwide practice. that was pretty much all he did with his student days and time on the bench. he didn't get active in politics. he didn't have a lot of hobbies. he was a hard working civil trial lawyer. i would say there's very little written about that time in neil's career, certainly, very little has been written in depth but what he put in his yearbook at georgetown prep, a lot on his time on the bench but not that much as his time as a civil trial lawyer but ill argue to you today that that experience
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as a civil trial lawyer is as telling about what neil can be like as a justice as anything perhaps other than service as a national judge. i'd certainly put it way highway of whether he wrote silly things at columbia, for example, and those who didn't do those things should be ashamed of ourselves but expectations at the right level. neil had a great talent for civil trial law and he was headed for a notable career as a trial lawyer and lucrative one at that but he was still a pretty young rising lawyer when he left the practice at age 38 or 39 and went into public service. that said, and meaning no disrespect at the eight current sitting justices, i think it's pair to s fair to say neil's length exceeds the united states supreme court since sean paul stevens in 1975.
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do the math. that's 42 years ago. we've gone 42 years since we've had a supreme court nominee with as much experience in our system, our system of advocacy, our system of litigation as neil mcgill gorsuch. most never tried a civil jury case to verdict and most argue deep experience with the thing that we use to resolve our disputes is absolutely pivotal importance to those on the bench. facts matter. records matter. what happens in litigation is messy. it is human. it is far from an anti-septic process or abstract intellectual exercise in the form of a cold record. the life of law is not of logic, it is an experience. those who try cases really know
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that very well. neil gorsuch has a strong grounding in our system. he understands his strengths and his weaknesses as well. he understands how the law affects real people. he's been an advocate for real people. everyday people as well as large corporations and he's seen it from all sides. this has to be a big plus for anybody who's going to go and take up a position as a supreme court justice. what else do we know of neil from his decade in practice? well, we know he worked hard. you young whipper snappers out there, how do i get the u.s. supreme court? i'll tell you hard work is a big part of it. you hear about work/life balance but i went back and checked. in his years as a partner, about 7 years, neil built between 2400 and 3,000 hours a year. that's billable working time. that's a lot. he actually built substantially less as an associate. i use as support for the argument that we partners work
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far harder than our associates but neil was a hard worker and why is that significant? there's no check on how hard they work. we rely on them to work as hard as the conscience dictates. it's an enormous complexity to the issues. we've all seen or heard or read reports about how justices and history, not talking about current justices but there have been justices over the course of history who for whatever reason, health, age, boredom, but the clerks do the work for them. i think we have enormous can have that's not going to happen to neil gorsuch. he's a constitutionally hard worker. two, he's been exposed to a lot. that we know from time in practice. not just an active trial lawyer but worked for both sides of the "v." plaintiffs and defendants. state and federal courts. i'll give you a sampling of the casings he worked on. with me.
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there was a case that involved refund anticipation law issued by an accounting firm. loans where people could get an advance on the government refund. that's the good part. the bad part, a sneaky 400% interest rate with them and tho neil and i put together a class action. hopefully i won't be struck by a bolt of lightning but we represented the plaintiffs in that case and tried to get a class certified. ultimately, they were stopped. our class representatives were impressive. army master sergeant, female and african-american and she agreed to serve for one reason and one reason alone. she thought it was the right thing to do and i remember how deeply neil and i felt about trying to get justice for the woman and the other people who were victimized by the scheme so when you roadway reports about corporate interest. remember that case because it's a telling indicator on the other
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side. there was a theft case for a small iranian immigrant doctor who owned an airport outside of college park, maryland. had a gravel pit on it but a big construction company buzz stealing the gravel. took that case like a bulldog and obtained a great result for that doctor. there was a very large section to anti-trust case we brought in paduka, kentucky. largest civil anti-trust judgment ever affirmed in u.s. courts. of course, i was the lead lawyer but nobody is interested in me today. and then a case for a beloved charity hospital put out of business by a patient's insurance company and our colleague obtained stunningly great verdict that helped get back money as a result of the abusive conduct by the insurance company but not like we were always that, but defendants too.
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a claim against the telephone company, that was southwestern bell and now is at&t. an action against the leading entrepreneur in delaware when the entrepreneur was allegedly taking too much money out of a group of theaters called regal cinema. there's a case against ford motor company and the car designers with having to do with rollovers and broncos too where we had to defend people who were honest hard working people trying to do a good job but deliberately trying to create bad cars and kill people. neil defended the case for a leading ensurer saying they refused to pay claims that thev when we did supposedly 50 surgeries with one hand. that's a sampling but a breadth of the practice, the variety of
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the practice, the subject areas that neil worked in. i think you couldn't find a supreme court nominee with a broader litigation experience or a deeper rounding of what we do. when he takes his seat on the court, he may be unique among clee colleagues in how the law affects real people in real life. i just think that's a huge asset for anyone who's going to be asked to resolve the important questions our supreme court is asked to resolve. but next on my list of book of virtues i like to call them, my william bennet approach to the speech, an independent streak. we know that from his time and practice. when we say a firm about it, they're contrary and difficult to work with and that's not what i mean when i talk about neil here. but he does what he thinks is right every time. for example, he came to our little firm and m. and most people go to, he wanted to go someplace to get more
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experience faster. that was an unconventional choice but he made it and never looked back. he chose to ground himself in trial work rather than appellate work that a lot of people with sort of beautiful clerkship resume type backgrounds, like neil have. instead of confining himself to the abstract exercise, he dove into the muck and mess which was an unconventional choice. he chose to work for plaintiffs as well as defendants. a lot of lawyers, they don't want to work for plaintiffs or they think, well, defendants are always right. i'll tell you, my day with general counsel and major company. i thought defendants were always right but no one is always right. sometimes plaintiffs are right, sometimes defendants are right and then system depends on the ability and willingness of lawyers to take both sides, to look at things from both sides of the street, to not be a doctrine or clause lawyer but take up the cause of the client,
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consistent with the rules of ethics and the law. i think it's also extraordinary that neil on the cusp of a really great career as a civil trial lawyer, a lucrative career gave it up. he fore swore it and went into public service. that shows independent streak too. felt like he was a calling to do public service and turned his back on what would have been a lucrative and satisfying career. so at the end of the day, these and a million other things i could say to you are evidence of the fact that neil is not going to do what anybody says, whether it's the president who nominated him or anybody else. neil gorsuch will do what he thinks is right. he's got a firm compass that guides his actions. number four on my little list of virtues is that neil is lev levelheaded in demeanor and a good temperament. a sense of humor helped. we live in a pressured world. we have contentious activities. we fight with people for a living. but it helps to deflect the tension with humor.
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so we were in charlottesville to try a case against the big accounting firm and told our office manager to go find an economic office space and neil showed up ahead of me and looked around, this basement. it was a basement. had these tiny cubicles you couldn't even turn around in and this office manager had done well. gotten us an economic trial space and said, we'll call it das boat because it looked like a german submarine. i know people are here. please, no one write that he's an a admirer of the german navy, but we'hence forward, it was always, when we shoot the das boat at 2:00 or 3:15. neil gets along with people, even adversaries. there's been stories in the press where adversaries say
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honorable, ethical guy but i'll tell you one story i'm using, and that's this one. when we had an adversary who had a habit of calling and he slams the phone down every time and that's wear and tear to have to deal with that so i finally called the person up and said, john, i know you like to slam the phone down but one day, we're not going to talk on the phone them. say, i won't say, but he used a word that reflected his view of the subject that didn't give me confidence he understood my message, so i didn't talk to him on the phone anymore. that's forward about a year and neil says, john's been calling me. why? he say, you won't take his call. that's right, i told him i wouldn't. he want to pay you $300 million. i'm not going to take his call.
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mark, actake it. he said, neil, i'm not going to talk to the guy. you have to understand the pressure because the final appeals had been exhausted and an interest in running on this enormous judgment, so john wanted to get rid of the money because otherwise, just keep paying $300,000 or $400,000 a day. so it's hurting not to take the call. i finally said, i tell you what. you'll never have to talk to john and he'll run behind my back and said, mark's crazy, but we'll work it out. work out the details of payment without offending me, annoying me, cooperating with john. got my little homily was made clear to john. it all work out fine. the important part is neil is a consensus builder. he has a warm personality, he gelts along with people and we're not sending someone to the supreme court to be a lone dissenter. i hope someone to work with her
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or his colleagues, to influence them and persuade, to be a colleague and i think neil has enormously wonderful interpersonal qualities that's very helpful to him in that effort. hopefully i'm not too far along in my time. i know there's a hook someplace for me, if i'm overdoing it, but once the senior partner starts to tell story, there's really no limit. but number five in my book of virtues for neil but what kind of person he is. does he get along with people or a good sense of humor? it's probably all pretty familiar stuff. but do we know anything about him that tells us what he's like at his core? do we have something that says about character? i would say that we do. it's one of my favorite stories. and it's this. we had a case for a big investment bank in florida that we were called into defend after
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they had defaulted. committed gross misconduct and treated the plaintiffs as true even though wasn't and tried on damages. i got hired to do that case. as i was sitting there watching another law firm do jury selection and i'll tell you, my stomach sank because what are they going to do with this thing? i can't even tell you how scary this was because not only did the judge default at the client but the judge was committed massive obstruction of justice was occurred an enormous suspicion with anyone to do with this client, so it had career ender written all over it. just death to your career. so much so, when the trial ended, the tjudge considered seriously appointing the other side's lawyer as a special prosecutor under florida law to conduct a criminal investigation
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of us with the power to indict us an why do i tell you that story? because after i got hired, what am i going to do? the other law firm was fired and enormously complicated case. yikes. i got a stop card. can i finish this and then stop. i called neil. he had a plan to go off into government, the department of justice. would have been completely understandable to say, i've got a hair appointment next week or i got other things to do. he could have come up with a million excuses or, mark, my career is too important but not going to strap myself into this burning boat an d go down with you, okay? what he said was, when you need m
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me,. he put his career on the line. i think that tells you a lot about the guy neil gorsuch is. what america is getting, the highly intelligent principle and experienced man with and i'm 40. everyone sent a letter to the senate saying you need neil gorsuch on the united states supreme court. ill say getting 40 independents who won't even agree what kind of coffee to stock in the kitchen, support neil gorsuch. this is an extraordinarily strong letter of recommendation. thank you all. [ applause ] >> now we hear from the panel of judge gorsuch's former law clerks. first up is jamiel, adjunct professor at scalia law school
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where he founded national security institute and directs the national security law program. jamiel worked in the office of legal policy and the white house counsel's office during the bush administration and chief counsel and senior advisor for the senate foreign relations committee and senior counsel to the house intelligence committee. he was one of judge gorsuch's first law clerks and also for jones and ucla graduate, university of chicago law school and united states naval college. and then her scholarship focuses on national security, criminal procedure and executive power. she previously served in the office of legal counsel during the obama administration and as an associate at kellogg hanson. jane is a graduate of harvard law school as well as harvard college. she clerked for judge gorsuch and then sonya sotomayor and then the staff director and chief counsel and chaired by
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senate rob portman. he previously served as chief counsel to mike lee as a fellow in the general and as a law clerk to gorsuch and antonin scalia. a graduate of the university of texas at austin and the university of michigan law school. we'll hear from you first. >> thanks to the heritage foundation for having all of us and thanks to mark for giving such a real tribute to judge neil gorsuch who really is a truly amazing person. i thought what i do for a few minutes, talk about the person that neil gorsuch is and the way he's affected my life in particular. i saw him in three different capacities over the course of time i've known him. when i first arrived at kellogg hanson back in 2004, judge gorsuch was a partner of the law firm and i was a young associate fresh out of law school and a clerkship with judge edith jones
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and i didn't know anything about the law. i started to meet partners and associates and the like, sort of learn about what the practice of law was like. i learned that kellogg hanson is a unique firm. i first ever deposition of the firm was a former federal district judge was 10 years on the bench and a partner with williams and connelly and a major accounting firm. they throw you into the deep water fast but judge gorsuch at the time in terms of very approachable person. he's a part nor aner and you ex them to be scary but he was none of those things. he was there for a couple of months before heading off to the justice department but in the brief time i knew him there, he was very accessible, down to earth, approachable, and this held true over the entire course of the, you know, well over now 13, 14 years that i've known him. so got to know him well there.
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judge at the time, off he goes to the justice department. little did i know nine months later, i'd follow to the justice department when mark was kind enough to let me lead to go work on the confirmations of then chief judge and now chief justice john roberts and then judge and now justice samuel alito and white house counsel harriet myers. it was unique opportunity to see judge in his time at the tops. i didn't work for him but didn't report to him. it was legal policy at the time run by rachel brand who's now a professor at the scalia law school and nominated to be the attorney general and justice department, but i got to know judge gorsuch in a different capacity as a practicing lawyer in the federal government. and that was really interesting but i saw him manage an entire set of divisions, the entire civil litigating office of the justice department and he had a
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practical view of this. again, very approachable. a young man at the time as mark mentions, he was in his late 30s. i was in my 20s and 30s. the bush administration was considering nominating him to be a judge on the tenth circuit. i knew this guy when he was a young lawyer or a young partner and now he's a young senior official of the justice department and nominee of the tenth circuit. this is kind of crazy so my boss says, can you do the vetting on this guy? actually, i can't because i knew him at the law firm so i thought i might be conflicted now. i can't be involved but ultimately, did the vetting and nominate him to the court of appeals and so i said, now that they've made the decision and so i did. this was after all the supreme court stuff had finished an ultimately, confirmed to the bench and said, i need to hire some law clerks and i had a f n friend of mine who ultimately
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ended up clerking for two appellate judges including judge gorsuch but i said, this guy, so young, so dynamic. he's going back to denver. heather's in denver. she would love this young man and so i said, you should talk to heather and did, ultimately hired her, two law clerks including a friend of mine, mike daif davis, at the time, moving to work in the criminal division and a special assistant attorney and ultimately hired mike and mike having gone for a year and now his own private law practice and completely changed his life. went from iowa to dc to having a private law practice, his own solo practice with two other folks in denver, colorado. so then judge gorsuch had one more spot and said to me, you should come clerk for me and it's funny. what an idiot. i scoffed at him. i clerked for edith jones, the queen of, you know, the federal
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judiciary when it comes to folks who are conservative, so i can't clerk for you in denver, so crazy, young partners in the law firms have me become clerk but he made a convincing case. he said, ski season in denver. pretty good point. i was afraid to leave at the time because i had been there a year and my plan was to go back to kellogg hanson and i said, i was a little worried because rachel brand gave me unique opportunities right out of law school and clerkship and like, what are you crazy to go now clerk again for a former partner and so i said, i'll make you a deal. i'll come clerk for you if you ask rachel. what an obnoxious human being it takes to tell a federal judge just confirmed. you go ask my boss and so here we are and he did and she said, yes, and off i went to go clerk for him. i only spent four months with
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him but let me tell you about who he was. he moved from a partner law firm to a federal attorney to a judge and was amazing about the transition was he did it with grace and dignity and honor an he really did it in a way that makes you think, this is a judge's judge. went from advocate to policy deciding lawyer in the justice department to being a neutral decision maker and so going to work for him for the first fur months was amazing because you watch the transportation, but beyond that, you also saw a young man who was sort of coming into his own and i remember the first day that mike arrived, he took us alpine sledding. it wasn't a workday. and alpine sledding, for those who don't know, it's one of the things people do in colorado when the mountains are not covered in snow. you go down this high speed rail try to race each other and the
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judge beat both davis and i down the mountain twice and continued to make fun of us for six months. you're young, dynamic, i can beat you down the mountain? it's pretty embarrassing. so and then he taught us how to fly fish. he loves fly fishing. very normal, down to earth human being. i was so bad at fly fishing, by the way, took the fly rod out of my hands and said, i'll get the fish on the line for you and then you reel it in. like your dad, almost embarrassing moments. first thing he asked me to work on is make sure he handled the ethics of becoming a judge properly. the law and statutes to handle he was coming out of a law firm, the justice department and handled those things ethically. we ensured he implemented the rules properly to properly take the office and take it seriously. he was serious about that. spent time revising the memo and looking at the materials and looking at the various parties
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he and making decisions that went well beyond the law. he wanted to make sure there was no question he was doing the right thing. he looks at the law first. he then looks at the arguments the parties are making before him and trying to figure out, what is it that the law says about this case before me? he doesn't try to make law for the 40 cases to come to the future. he doesn't look to go beyond the arguments made by the parties and doesn't look to go beyond the text of the law. tries to apply the law faithfully as written by congress and the framers of the constitution and apply it even handedly and with that, getting the stop signal. i'll turn it over to my colleagues. >> hi. i thought i would start and talk first about jamiel and one thing that struck me from day one
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coming off of law school and judge politicians and robes. so i came from law school and had this in mind and so it was a real shock to me to clerk from day one for a judge that conv conveyed from really the moment the first case i had with him that it is not how it goes in chambers and it's all about the rule of law and it's all about a place where judiciary is not a place to do politics. it's not a place for personal prefrn preferences of the judge but rule of law and the text of the statutes and the constitution, and originally understood at the time that the constitution was enacted. what do the arguments say? that struck me because it had even to this day conversations with friends where they had a cynical view of the judiciary and i think that one thing i
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feel very sort of blessed about is to have had the opportunity to clerk for someone who conveyed me to this deep, deep sense that, you know, like, democracy can only function if it is in the elected, or if it is in the representative branches where policies are being done. so that was a first thing that struck me and then the second thing that struck me was the way in which he approached all cases whether they were high profile, low profile, it was an enormous amount of care and respect. i remember one case in particular. won't get into specifics of it, it was very much, low profile case, not a case that was going to get into the newspapers but had not one but two. a tricky question with the factual aspects of the record and sifted through it for hours
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day and days and weeks. that struck me as well. on the personal side, the way i came to the judge was i put together in law school this list of judges i wanted to clerk for. i was one of the early clerks when i was applying on the bench for a year and a half. i had heard of him and had lists of 20 or 30 judges. look at the list and he ran through and said, this looks good but you should add this judge, judge gorsuch. he just took the bench. i heard him give a speech and he seemed just brilliant and i think you should go and take a look at him. so i applied. i was fortunate enough to get an interview with him and actually confess, reluctantly that i wasn't sure the day, do i want to fly out to koecolorado? i was debating possibly cancelling. so i flew out there and by the end of the interview, he offers me the position, i would just be
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blessed to clerk because in the short span of 30 to 40 minutes, i could see his brilliance and this incisive questioning and also, just what a kind decent man he was and there was a real warmth radiated from him and that has been my experience with him, so i've known him now for ten years. he's virtually the first person i call with any question about my career or even some aspects of my personal life and he takes the time on the phone to talk it through with me and offers any help he can get and a true mentor to me and a lot of folks. on that one last story, many students apply to this supreme court in law school and got accepted to the supreme court clerkship right out of law school and i didn't apply and i don't even recall applying. i thought it was just something
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out of reach, wasn't going to happen for me. and it was the judge that pressed day in, day out that encouraged me to apply. i was fortunate enough to have a later experience on the clerks of the supreme court and that's just an episode that demonstrates really his mentorship qualities and how he's looking out for everyone. so on that note, turn it over to madam ow you. >> thank you. and i wanted to also thank mark for his address which i also thought was really interesting as we all came to know, except jasper, but the rest of us came to know him after his days of a lawyer. we've heard war stories from mark and partners, other people who appeared with and against and around the judge when he was a lawyer and still practiced. we understand he was a
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remarkable lawyer but it's a part of his life that he didn't get to see. so it's nice to hear about. i guess i'll reverse the order in which jane took this. i want to say something personal about the judge and then maybe something a little bit about his cases and his approach to the law. it's funny how we all came to clerk for him. i came to clerk for him because i had an interview with a different federal judge on a wednesday and this judge is, you know, famously very rigorous about interviews. he was a very grueling kind of all day process of talking to his law clerks and himabo about everything, which wasn't much as a second year law student but i flew from the interview to denver to his name, neil gorsuch.
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he was a judge and that professor of mine who sort of my mentor in law school. and terrific judge now and was friends with neil gorsuch and said, he's new and great. he's in denver and talked to the law person and sit down with the judge and about 30 minutes, he managed, while being entirely kind of gentleman lly and polit to poke at three or four questions about my writing sample and classes that were real questions that got to the point but meanwhile to learn what i was planning to do over the weekend, planning to go hiking, would i like to stop by his cabin because all the law clerks would be there on a hike and made sure i got a phone number to do that. he was from the beginning, from the first minute before he offered me a job, the most welcoming person in the world about being in colorado and
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being around him and his sort of extended family that became his law clerks. and it feels like an age ago now to look back on it, knowing that he's now the nominee of the president to be on the supreme court is something special for me and all of us, i think, who clerk for him, particularly those who clerked a long time ago. i'll also echo something janey say. as a human being, he's tremendous tremendously, i can attest when i had rough days and particularly rough day in my life. i got a call from the judge who sort of hear about it and all i could say is he made it his business to make sure whatever was going on was put right and do that himself which he did. and it meant a lot to me.
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an particul and particularly because i had the privilege to clerk for justice scalia, it's meaningful to me to know that the person who's going to take justice scalia's seat on the court is not just a conservative in his tradition but also a good man. i do want to say something quickly about his jurisprudence too because he's been compared in the last few months to justice scalia in lots of ways. maybe not in what we might call the vociferousness of his descent. i don't think we could get that like we did from justice scalia but you could expect a similar approach to the law. you know, textualism when it comes to statutes and originalism, history, and
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rigorous attention to the law when it comes to the constitution. if anyone remembers when they were in, like, graduate schoe s having to diagram sentences. there's a sentence diagram in the opinion and actually makes it very clear. you want to know like, which word does this phrase modify and i'll show you, right? it illustrates a really deep commitment to the things that, for me, it's important to say, justice scalia taught us all after he died, everyone took a moment to notice how much justice scalia changed the way lawyers and judges talked about an think abo and think about the law. nearly 30 years after scalia became a justice, the person who diagrammed a sentence in a judicial opinion rather than leafing through legislative history. i was going to say something
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about a constitutional case but actually, maybe in keeping with the theme of mark's speech, i have something to say about the judge's lawyer and he understood the part of his job as a court of appeals judge was to ensure the trial litigation is efficient and fair. and so years after i clerked there, i got a -- he sends out his opinions to his law clerks, you know, occasionally, and we pretend we read them all, but we read some of them. and i remember reading one that was -- it was a published opinion of the 10th circuit and anyone watching who is a lawyer will know what this means about a discovery dispute. what happened is the trial judge had sanctioned a party for not producing a document that they were supposed to produce on time, and then they had been told to do it a second time and still didn't do it and the trial judge lost their temper a little bit and dismissed the case. and maybe in the course of dismissing the case, the judge
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didn't like recite all the things you're supposed to recite, and consider all the factors you're normally supposed to consider, but the conduct of the party was really outrageous. and the judge wrote an opinion that has been cited a lot and i understand district judges across the can country are grateful for, which said, no, no, no, discovery is not a shell game. i think that's the line. you cannot, you know, hide documents, prolong litigation, that costs people, real people time and money and if a judge decides that if you bring a lawsuit and you won't comply with discovery orders, they want to dismiss your suit, that's fine, right. it is a small thing. but if you ever practiced civil litigation as all of us know, partners like mark say, hey, go find a case where when somebody did this terrible thing to us, the judge came down on them, those cases are very hard to find. you can spend -- you can spend a lot of time because court of appeals judges don't like to hear discovery cases. they like to write about
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constitutional law and the fourth amendment and religioust to talk about, but judge gorsuch ordinary litigation for ordinary people is conducted as fairly and efficiently as he can. i know that that interest and commitment that he learned from being a lawyer and what he knows is important about how the justice system really operates for real people and real parties and real cases is going to go with him to the supreme court. so with that, i'll turn back to elizabeth. >> thank you. so now we have time for a few questions from the audience. we have a few ground rules, please wait for a microphone and identify yourself. and please ask a question, don't make a speech. any takers? over here. >> hi. paul cabanar. i had the fortune of knowing the judge when he was in private practice. my question is probably to the law clerks. in terms of his work ethic, it
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is clear. when he's going to be on the supreme court, do you think he would join justice alito in terms of reading his own surpri certifications there or be part of the pool and there will be many before him after he's confirmed, especially in the criminal law, the decostra case and a mens rea. what do you think about that and what is his view on criminal law jurisprudence. thank you. >> i can take a shot at some of that. i know justice alito is not -- no longer -- for those of you know, the justices, most of them except justice alito pool their law clerks to help review the certifications that come and petitions for asking the court to review a case and it is having -- written these memos it a tedious part of every law clerk's week. justice alito is not in that
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process. he likes to have the clerks review all of the petitions under his own standards. but that wasn't true the first year he was on the court. as i remember, justice alito, was in the cert pool for a while until he got his feet under him on the court and decided what he wanted to do. so i don't know whether the judge has any particular plan about that. i'm sure we'll all find out. i'm also, you know, wouldn't be surprised if, you know, you can change your mind about that over time. on criminal law jurisprudence, i don't know if anyone else has an opinion about that. he's, i think, there are a number of cases where like justice scalia, if the law says the defendant gets to win, the defendant gets to win. and that's sort of the end of it. sometimes there are particular cases where the judge has taken a pretty rigorously textual approach to a criminal statute that disfavored the government and his opinions to me reflect
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the same kind of approach to that that justice scalia had. >> i think the important thing to know about that is, you know, justice jackson was attorney general before he was nominated to the bench. one thing really interesting about justice jackson was he took on the role of a judge very seriously, he was an advocate when he was in the justice department and immediately switched to being a neutral decisionmaker. i think people look at justice jackson's surprise and will say that was a man that took that craft seriously. judge gorsuch is similar, having been a justice department senior official, that doesn't bring with him any baggage. he looks at the law for what it is and decides the case on the law, not on a view of how it should come out, whether for the government or for the defendant at the end of the day. he has spoken a bit about overcriminalization also and talked about the challenges that overcriminalization presents for the judicial system and for parties who are trying to govern their own conduct. >> if i can add something, i don't know if you agree with
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this, but if he took something from his senior service at the department, to his job, that relates to criminal cases, it is that he has enormous respect for the department of justice, but also very high expectations for their behavior and the quality of their advocacy and briefing and he could -- he could be known to get a little hot under the collar at oral argument if he thought the government was cutting corners in a criminal case. >> as mark has alluded to, a lot of folks are talking about his writing style and how clear it is. part of that, i think, much in the line of justice jackson, is about having ordinary americans understand what the law requires of them, so overcriminalization point he wants americans to feel either to both read this texas statute under saying what is required of them and read judicial opinions. >> over here. >> thank you for the wonderful
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panel. star parker. you mentioned several times now that he looks to existing law and i'm wondering well, you said, looks at the law first, is that existing, all laws leading up to the existing law, is it the way he would interpret constitutional law? what world view does he come to the table when you talk about he looks to the law? >> i think matt talked about a little bit, you know, i think the judge looks at the law that is applicable to the parties. so in any given case, you have a law that existed at the time the parties' conduct took place. he's going to apply that law, right, based on the arguments made by the parties before him to the case before him. as janie mentioned, he's not looking to be a politician on a rope. that's an important thing. today, i think in our country, both on the conservative side and liberal side of the spectrum, too often, we don't get the outcome we like in the political process, we run to
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courts and we say you solve this for me. you fix the law. this is the problem on both sides of the aisle. i think judge gorsuch's view of the judiciary and correctly based on the framer's judiciary is that's not the job of judges. that's the political process. a problem with the laws, there is a way to do that. elected officials you can vote them out of office. you don't running to the courts and have the courts solve the problem for you. you have a case before the courts, it is important that the judges look at the law, the constitution or statutory law and apply it fairly feerts before them with no bias toward one side or the other, no predisposed notion, and no personal policy preferences into that. doesn't matter what the judge thinks the right answer should be, the question is what the right answer under the law. that's important. that's what makes judge gorsuch a judge's judge. and that's what i think we want. at the end of the day, even though we run to the courts, very litigious society,
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americans really want judges to do that job and not the job of politicians and i think that's the kind of judge neil gorsuch is and i think if he's lucky enough to be confirmed to the supreme court, that's the kind of justice he would be. >> i have a question for the panel. so everyone is familiar with the pretty famous friendship of justice ginsburg and justice scalia, particularly for janie and matt since you clerked for supreme court justices. do you see any of the current justices and gorsuch becoming fast friends? >> i can take a stab at this. the judge is sort of known in the tenth circuit as being friends with everyone in the tenth circuit, this goes back to a personal, warm guy, and so i can't speak to any particular justice that may become particularly close too, but i think he would make fast friends with all of them.
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>> it is worth remembering he clerked for justice kennedy a long time ago. i know that i'm sure that's a special thing for both of them if the judge is confirmed to sit on the same court together. as you know, as you can all tell or know, being someone's law clerk is an important relationship and i'm sure that's -- he's looking forward to that. >> i think we have time for one more question. if not, well, join me in thanking our panel. in case you missed it, h


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