Gorsuch reliably right, but intensely attentive

DENVER — 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.

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.”

Trained in debate

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.”

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 — Georgetown Preparatory School in Rockville, Maryland. 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.”

A conservative voice

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.”

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 Ph.D. 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.

Sincere and affable

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.”

Unpredictable legal career

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.

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.”

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.”

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 month, all of them — except two currently clerking at the Supreme Court — signed a bipartisan letter praising his independence.