Liberals And Gays For Gorsuch? (Or, The Virtues Of Non-Ideological Clerk Hiring)

It's nice to have friends on both sides of the aisle.

Supreme Court Nominee Judge Neil Gorsuch Meets Senators On Capitol HillHow much do judges consider an applicant’s ideological or political leanings when it comes to law clerk hiring? The answer, as for so many things relating to law, is predictable: “It depends.”

Different judges and justices take different approaches. The late Justice Antonin Scalia hired more conservatives than liberals, but he was known to hire the occasional “counter-clerk” or “token liberal.” Justice Clarence Thomas, on the other hand, tends to stick with conservatives. As he memorably quipped, “I won’t hire clerks who have profound disagreements with me. It’s like trying to train a pig. It wastes your time, and it aggravates the pig.”

Each approach has its upsides and downsides. Judges who hire ideologically cite greater chambers cohesion and esprit de corps as advantages. Judges who hire non-ideologically cite the benefits of intellectual diversity and how divergent perspectives make for a stronger final work product.

Here’s one advantage of non-ideological clerk hiring that, alas, will apply to very few judges: if you’re ever nominated to the U.S. Supreme Court, you’ll have clerks advocating for your candidacy from both sides of the aisle. Here’s a report by Richard Wolf for USA Today about former clerks of Judge Neil Gorsuch going to bat for their former boss:

Every [clerk] who worked for Gorsuch since he became a judge in 2006 — with the exception of two now clerking at the Supreme Court — signed a letter to the Senate Judiciary Committee Tuesday heralding his independence that “will never waver.”

The endorsement wasn’t remarkable, coming as it did from the young men and women Gorsuch hired out of law school to work with him for a year at the U.S. Court of Appeals for the 10th Circuit in Denver. But the clerks stressed their own political independence, even as it relates to last year’s refusal by Senate Republicans to vote on then president Barack Obama’s nominee for the still-vacant seat.

It’s an eloquent, elegant letter, and it went out yesterday — a nice little valentine from the clerks to Judge Gorsuch. You can read it in full on the next page. Their words carry greater weight given the diversity of their politics:

“Our political views span the spectrum, and among us you will find differing views on how the Senate handled the nomination of Judge Merrick Garland,” the letter, signed by 39 former law clerks, said. Among the signatories are three lawyers who later clerked for one of Obama’s two confirmed justices, Elena Kagan and Sonia Sotomayor. “We came to his chambers from 16 different law schools in four different time zones,” the letter noted. “Following our time in his service, we have gone on to every part of the legal profession.”

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Including service in the Obama Administration. See this great pro-Gorsuch ad by the Judicial Crisis Network, which is spending $10 million to support Judge Gorsuch’s nomination. It stars former NMG clerk Jane Nitze, described as a “former Obama Administration attorney,” speaking glowingly about her former boss:

Given how partisan the Supreme Court nomination process has become, an endorsement from across the aisle carries much greater weight than a bunch of Republicans talking about how great Judge Gorsuch is. See also the endorsement of Judge Gorsuch from his former colleagues at Kellogg Huber Hansen, the elite litigation boutique with high-powered lawyers on both the right and the left.

Also reassuring to liberals: warm words about Judge Gorsuch from members of the LGBT community. Gay Gorsuch supporters include Phil Berg, a friend of the judge’s from Harvard Law School, and Joshua Goodbaum, a former clerk. As Goodbaum told Sheryl Gay Stolberg of the Times, Judge Gorsuch “was thrilled for us” when Goodbaum married his longtime partner in 2014 (which was, it should be noted, prior to the Supreme Court’s ruling in favor of marriage equality in Obergefell).

Does the fact that Judge Gorsuch has gay friends mean that he’d vote in favor of gay marriage or other LGBT rights? Of course not. As noted by Michelangelo Signorile (among others), Judge Gorsuch is an originalist, and from that perspective, gay marriage doesn’t fare too well.

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But how Judge Gorsuch would have voted in Obergefell is a very different issue from how he would vote in some future case trying to overrule Obergefell. My own guess? Judge Gorsuch would have voted with the dissenters in Obergefell, but he — and perhaps Chief Justice John Roberts — would flinch if asked to overrule it now. They are conservatives in judicial philosophy but moderates in temperament, and overturning Obergefell — or, for that matter, Roe v. Wade — would be highly destabilizing and disruptive.

Also, keep in mind that it would probably take a few years for any Obergefell-overturning vehicle to arrive at the Court (assuming that the Court even wanted to grant certiorari to such a controversial case). By that point, Obergefell will be even more entrenched, and even more loving gay couples from around the country will have gotten married in reliance upon it as precedent.

Now, is it possible that a Justice Gorsuch might construe precedents like Obergefell and Roe narrowly, in favor of laws trying to accommodate religious objections to same-sex marriage, or more aggressive regulation of abortion? It’s very possible. But I don’t think he’d be any “worse” for progressives on this score than most of the other Trump SCOTUS shortlisters (and he’d probably be “better” than some, such as Judge Bill Pryor).

Congratulations to Judge Gorsuch, praised by his clerks as “a remarkable judge and a remarkable man,” on the sizable support from surprising quarters. And good luck to him in the confirmation process. If anyone can hit that perfect note of criticizing Donald Trump enough to appease Democrats but not so much that his nomination gets pulled, Judge Gorsuch can.

(Flip to the next page to read the letter by the 39 former Gorsuch clerks in support of their ex-boss’s nomination.)

UPDATE (2/16/2017, 2:00 p.m.): Jane Nitze, the former Gorsuch clerk in the JCN ad, might not be as progressive as you might expect a “former Obama Administration attorney” to be, at least according to Ian Samuel:

Ian Samuel tweet about Jane Nitze

UPDATE (2/17/2017, 11:09 a.m.): A second source adds this about Jane Nitze:

She had worked as an Attorney Advisor at the Office of Legal Counsel at DOJ during the Obama presidency. But this is a career position, not a political appointment. Her political views would not and legally could not have mattered to her hiring. So the fact that she was a career attorney at DOJ while Obama was President says nothing about her political views.

Earlier: Is Judge Neil Gorsuch The Supreme Court Nominee?
Poll: How Screwed Is Judge Gorsuch Over These Trump Comments?

Former law clerks herald Supreme Court nominee Neil Gorsuch’s independence [USA Today]
Judicial Crisis Network Releases Ad Supporting Neil Gorsuch for Supreme Court [U.S. News & World Report]
Trump’s Supreme Court Nominee Showed Support For His Clerk’s Gay Marriage [Reuters via Huffington Post]
Gorsuch Not Easy to Pigeonhole on Gay Rights, Friends Say [New York Times]
Why Neil Gorsuch Likely Believes It’s Perfectly Fine To Ban Gay Sex [Queer Voices / Huffington Post]

Earlier: Is Judge Neil Gorsuch The Supreme Court Nominee?


DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.