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tv   Former Colleagues of Supreme Court Nominee Neil Gorsuch Discuss His Career...  CSPAN  March 13, 2017 12:04pm-1:04pm EDT

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danger from the actions of north korea. >> congressman eliot engel during the energy and commerce committee markup of the health care bill. >> this is one of the most important things that we're going to vote on this year, and it's rushed through and we're buying the pig and a pope because we don't have all the details. so that's why we're so disgruntled. we don't like this being jammed down our throats and rushed down our throats and rushed down the american people's throats. >> c-span programs are available on, on our home page, and by searching the video library. now, former law clerks to supreme court nominee neil gorsuch talk about how the judge approaches cases, and if confirmed, what type of supreme court justice they think he'll be. confirmation hearings for judge gorsuch start next monday, march 20th. right now at least three days of hearings are scheduled, with
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opening statements on the 20th, questioning of judge gorsuch on the 21st, and other witnesses on the 22nd. check for our coverage plans. you're watching this event live from the heritage foundation here on c-span3. >> of course, for those watching online, they are welcome to send questions or comments at any time simply e-mailing we will post the program following today's presentation on the heritage home page. leading our discussion is elizabeth schlatterly, legal fellow in our center for legal and judicial studies. mrs. schlatterly writes about the supreme court separation of powers, judicial nomination, and a variety of constitutional issues. she also manages heritage's appellate efficacy programs, including moot court sessions to prepare litigate tors to oral arguments and cases pending before the supreme court. please join me in welcoming elizabeth schlatterly.
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elizabeth? >> thank you, john. president donald trump selected neil gorsuch, a judge on the 10th circuit court of appeals to fill the supreme court vacancy left by justice scalia's passing last year. judge gorsuch has spent the last ten years writing countless opinions and establishing himself as a thoughtful jurist who pays close attention to the text and original public meanings 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 colleague, friend, and boss is judge gorsuch? we'll hear from a panel of his former law clerks today, but first his former law partner and boss who's reported as saying gorsuch was born with silver hair and winston churchill quotes. with more than 30 years of experience, mark has been the lead trial counsel in cases across the country, representing prominent clients such as the
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u.s. government, kingdom of saudi arabia, large corporations, including general electric and verizon. he's tried more than 30 cases to verdict and argued more than 20 appeals. mark previously served as an assistant u.s. attorney for the southern district of new york and as a law clerk of judge william timbers of the 2nd court of appeals. he's a graduate of dartmouth college and harvard law school. >> thank you very much, elizabeth, and good afternoon, everybody. i wrote a title for my little talk today, which will be about 20 minutes. the title is "i knew him when." because we all know the phenomenon of somebody who hits a home run to hit the world series or wins the powerball, emerges from obscurity and someone everybody asks the question, who is this person? what do we know about her or him? of course, somebody's nominated to the united states supreme court, that's an extraordinary thing, and when neil gorsuch
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becomes that nominee, obviously, all eyes turn to neil. so the reporters and the public tracks back to the early days, to the people, the little people like me, who knew him when. first story vignettes of what neil was like before he became famous. and, you know, me, like everybody else, we love to get a little bit of reflective glory. i have a story i love to hear from a friend of mine who's a legal academic. among other things, he argued a prominent case for the haitian refugees years ago, as he finished his argument, he came out to the iconic supreme court steps surrounded by tv cameras and reporters hanging on his every word and from stage right, this figure came striding toward him saying, i want to congratulate my best friend, my good friend, the man who worked so tirelessly with me to save the haitian refugees. my brother, my friend, he leans close, puts his arm around my friend, the academic, turns to
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him and says, what's your name? well, i know neil gorsuch, i know his name, and i worked with him for a decade. we practice civil trial law together across the united states and a variety of cases, and i'm happy to be here today to tell you what that experience might suggest to you and to the public about the kind of supreme court justice neil gorsuch is likely to be. unlike our president, who's going to be turned out either in four years from now or eight years from now, can't serve longer than eight years, neil gorsuch, who's being appointed, nominated, and if confirmed to the supreme court could be there 40 years, 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 just so he could be considered for a supreme court nomination today. that's how careful neil gorsuch is. obviously, the best clues from one kind of justice neil gorsuch
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will be are in the 800 published opinions he's issued as a judge of the united states court of appeals to the 10th circuit and with us today are three distinguished former law clerks to judge, soon to be justice gorsuch, who are going to describe for you what those opinions tell us about his way of being a judge. i will tell you we've been fortunate enough, our little firm, to work with two of those three. sorry we missed out on the third, and neil has done a fabulous job early on in his tenure as a judge of really taking care to find the very best law clerks. they sent a lot off to the u.s. supreme court. he gets great people, helps him do a great job, and that's something you should take note of. on the supreme court, he's likely to do the same thing. think of it, neil has written 800 majority opinions. that's about 80 a year. the u.s. supreme court takes up roughly merits cases a year. so, you learn a lot from the opinions and neil writes well. a lot of commentary on how neil
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writes. he's a good, careful writer, tells us what he thinks and why he thinks it. if you're really a law geek, you can take down those 800 opinions and pore over them, as many scholars have done or will do. i will tell you, not all of them are marberry versus madison. there's, for example, the a.m. versus holmes case, where gorsuch took up the discussion whether a student has a right to burp in class and now scholars can consider whether burping is a right, whether neil found the right, and if there are restrictions that apply to that right. but joking aside, we have in addition to neil's 800 opinions, a decade of service as a private lawyer. we know that neil gorsuch was a serious, committed civil trial lawyer with an active nationwide practice, and that was pretty much all he did for the ten years between his student days and his clerkship days and his time on the bench. he didn't get active in politics, he didn't have a lot
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of hobbies. he was a hard working civil trial lawyer. i would say that there's very little that's been written about that time in neil's career. certainly very little has been written in depth, but a lot about what he put in his yearbook at georgetown prep, spent a lot of his time on the bench, but not much time as his civil trial lawyer, but i would argue to you today that experience as a civil trial lawyer working in the trenches of our court system is as telling what neil could be like as a justice as anything perhaps other than his service as an actual judge. i'd certainly put it way ahead whether he wrote silly things in a newspaper column at columbia, for example. anybody that didn't do those things should be ashamed of ourselves. but let's set expectations at the right level. neil had a great talent for civil trial law and was headed for a lucrative career, but he was still a pretty young rising lawyer when he left the practice
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at age 38 or 39 and went into public service. that said, and meaning no disrespect to the eight current sitting justices, i think it's fair to say that neil's deep and lengthy engagement with our civil justice system exceeds that of any nominee to the supreme court since shaun paul stevens in 1975. let's do the math. that's 42 years ago. we've gone 42 years since we had a supreme court nominee with as much experience in our system, our system of advocacy, our system of litigation, as neil gorsuch. our supreme court is comprised today of extinguished lawyers, most of whom have never tried a civil trial case to verdict. those of us who tried cases would argue the deep experience with which we use to disputes is of pivotal importance to those on the bench. facts matter, records matter.
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what happens in litigation is messy. it is human. it is far from an antiseptic process. it is far from an abstract intellectual exercise presented in the way of a cold ro record for appellate court. famous holmes quote, the life of law is not the logic, it is experience, for those of us who try cases really know that very well. neil gorsuch has a strong grounding in our system. he understands the strengths and he understands its 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 about neil from his decade in practice? well, we know he worked hard. you young whipper snappers out there wondering how do i get to the supreme court.
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i'm here to tell you hard work is a big part of it. you hear a lot about work/life balance and so on. i went back and checked. in his years as a partner, about seven years as a partner, neil billed between 2,300 to 3,000 hours a year. that's billable working time, that's a lot. he also billed substantially less as an associate, which is i argue we partners work far harder than our associates. why do i think that's significant? because once we elevate folks to the supreme court, there's really no check on how hard they work. we rely on them to work as hard as their conscience dictates. that's a hard job, enormous amounts of material to master, enormous complexity to the issues. we've all seen or heard or read reports about how justices and history, certainly not current justice, but there have been justices over the course of history for whatever reasons, health, age, boredom, some checked out, let their clerks do the work for them. i think we have enormous confidence that's not going to
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happen to neil gorsuch. he is a constitutionally hard worker. two, he's been exposed to a lot. that we know from his time in practice. not only was he an active trial lawyer, but he worked for both sides of the "v," as i like to characterize it, plaintiffs and defendants, state courts, federal courts. i'll just give you a sampling of some of the cases he worked on with me. there was a case that involved refund anticipation laws issued by an accounting firm. loans where people could get an advance on their government refund. that's the good part. the bad part was, they had a sneaky 400% interest rate affixed to them and neil and i and others put together a class action. that word -- hopefully i won't be struck by a bolt of lighting, but we represented the plaintiffs in that case and tried to get it class certified because we thought the loans were abusive and ultimately they were stopped. our class representative in the case was an impressive army
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master sergeant, a female, an african-american, and she agreed to serve as class representative for one reason and one reason alone, she thought it was the right thing to do. i remember how deeply, you know, neil and i felt about trying to get justice for this woman and the other people who had been victimized by this scheme. when you read reports how neil was a lawyer for corporate interests, remember that case, because it's a pretty telling indicator on the other side of the "v." there was a theft case for a small iranian immigrant doctor who owned an airport outside college park, maryland. he owned an airport with a gravel pit on it and a big construction company was stealing the gravel. neil took that case like a bull dog and got a good result for the doctor. there was a large section two antitrust case we brought in kentucky involving a monopolist who was squashing smaller rivals. neil helped obtain the largest civil antitrust justice ever affirmed in court. of course, i was the lead lawyer, but nobody is interested
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in me today, so we'll make it about neil. finally, there was a case for a beloved charity hospital here in washington who was put out of business by an insurance company and neil and our colleague obtained a stunningly great verdict to help get the hospital back some money. but it wasn't like we were also robbers, we were also defendants, too. neil defended a claim brought by an upstart telephone company against what was then southwestern bell, now at&t. he defended a derivative action brought against a leading entrepreneur when the entrepreneur was allegedly taking too much money out of a group of theaters called regal cinema. there was a case against ford motor company and some of the car designers of ford having to do with reallyovers of the bronco 2s where we had to defend people who were honest, hard working people who tried to do a good job on the cars but defendants said they were
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deliberately trying to make bad cars that killed people. neil defended a case when doctors came after the insurer that refused to pay claims that the doctor had validly presented when needed 50 operations supposedly on one hand. that's just a sampling of the cases. there were many, many more, but i hope it gives you some sense of the breadth of the practice, the variety of the practice, the subject areas that neil worked in. i think you couldn't find a supreme court nominee who had a broader litigation experience or deeper grounding in what we do. when he takes his seat on the court, he may be unique among his colleagues in his broad firsthand understanding of 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 has asked to resolve. well, next on my list of book of virtues i like to call them, the william bennett approach to the speak, he's got a very independent streak. we know that from his time in
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practice. usually when we say at our firm that means they are contrary and difficult to work with, but that's not what i mean when i talk about neil here. what i mean is he does what he thinks is right. every time. for example, he came to our little firm instead of going to the standard traditional big law firms most people of his background goes to. he decided he wanted to go to a place he could get more experience faster and help build something. that was an unconventional choice, but he made it and never looked back. he chose to ground himself in trial work rather than the appellate work that people with the beautiful clerkship resume type backgrounds, people like neil have, instead of confining himself to the abstract exercise, he dove into the muck and mess of real life litigation, which was an unconventional choice. shows his independent streak. he chose to work for plaintiffs, as well as defendants. a lot of lawyers don't want to work for plaintiffs. they think, well, really defendants are always right. i will tell you, my dad was general counsel of a major
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company. didn't take me long in the practice of law to be disabused of that. no one is always right. sometimes plaintiffs are right, sometimes defendants are right, and our 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 cause-handed lawyer, but really take up the cause of the client and bring the client the best result you can obtain for the client consistent with the rules and 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, very lucrative career, gave it all up. he foreswore it and went into public service. that shows his independent streak, too. felt like calling to public service and turned his back on what would have been a lucrative career and satisfying career. these and other things are evidence of the fact neil's not going to do whatever anybody tells him what to do. neil gorsuch is going to do what he thinks is right. he's got a firm compass that
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guides his actions. number four on my little list of virtues is neil is level headed in his demeanor and has a good temperament. i'll just tell you a couple stories on that one. a sense of humor helps, right? we live in a progressive world, have pretentious activities, fight with people for a living, helps to deflect that tension with humor. we were down at charlottesville to try a case against a big accounting firm. we told our office manager to find us economical office space, and neil showed up ahead of my down in charlottesville, looked around this basement, it was a basement, had tiny cubicles you couldn't even turn around in. our office manager had done too well, gotten us an economical trial space and neil promptly turned around, looked at the space, said we'll call it das boot because it looked like a german submarine. i know this is being televised, please, no one write that neil is an admirer of the german
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navy. please, please, please, he was not an admirer of the german navy, but we were all familiar with the movie and it was a perfect characterization of our little trial office. from hence forward, meet you at das boot at 2:00, tell the witness to go to das boot at 3:15. neil get ace long with people, even adversaries. there have been stories in the press, honorable, ethical guy, but i'll tell you a story i always find amusing, and that's this one. when we had an adversary who had this habit of calling me, we'd have a conversation, subsequent to the conversation, slam the phone down. every time. and that kind of creates wear and tear to have to deal with that. i finally called the person up and said, john, i know you like to slam the phone down on me, but the day's going to come you want to take a phone call from me and i'm not going to take your call. i won't say it, we're on television, but he used a word that reflected his view of the
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subject that didn't give me confidence he understood my message, so i didn't talk to him on the phone anymore. fast forward about a year, and neil comes to my office and said, a john's been calling me. why? said you won't take his call. that's right, i told him i wouldn't. well, john wants to pay you a billion, 300 million dollars. i'm not going to take his call. mark, take the billion, 300 million dollars, okay? neil, i'm not going to talk to the guy. you have to understand the pressure, at that time all the final appeals have been exhausted and interest was running on this enormous judgment, so john really wanted to get rid of the money, because otherwise he was going to keep paying $300,000, $400,000 a day. it was hurting john not to have me take his call. finally, don't worry, tell you what, mark, you'll never have to talk to john, don't worry about it. he went behind my back, we'll work this out, mark's crazy, but he managed to work out all the details of payment without offending me, annoying me, my
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homily was made clear to john, all worked out fine. i could tell you lots of other stories, but the important part of it is, neil is a consensus builder, finds common ground with people. he has a warm personality, gets along with people, and we're not sending someone to the supreme court to be a lone descenter or pariah. i hope he's going to work with his or her colleagues, to influence them, persuade, be a colleague, and i think neil is going to be very helpful. in that effort. hopefully i'm not too far along in my time. i know there's a hook some place for me if i'm overdoing it, but once senior partners start to tell stories, there's really no limit. i'm getting my number five in my book of virtues for neil and that's what kind of person is he. we've been talking about does he get along with people, does he have a good sense of humor, does he work hard.
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that's probably all pretty familiar stuff, but what is she like at his core? do we have something that tells me about character? and 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 in to defend after the judge had defaulted the investment bank, found the investment bank committed gross misconduct in discovery, agreed to treat the plaintiff's case as true, which it wasn't. we decided we're going to try the case on damages, so i got hired to do that case as i was sitting there watching another law firm do jury selection, and i tell you, my stomach sank, because what am i going to do with this thing? now, i can't quit, i don't think i can even tell you how scary this was. not only did the judge default the client, but convinced
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massive corruption had occurred and so it had career ender written all over it. it really did. death to your career. so much so that when the trial ended, the judge held an extraordinary proceeding the likes of which i have never seen anywhere else, where she considered seriously appointing the other side's lawyer as a special prosecutor under florida law to conduct a criminal investigation of us with the power to indict us. why did i tell you that story? i tell you that story in that after i got hired, what am i going to do, the other law firm had been hired and weren't going to work on it anymore, enormously complicated case. yikes. i have a stop card. can i finish this story and then stop? that really is the end. i called neil. neil is already heading off to government. already had his plan to do some time at the department of justice. it would have been completely understandable for neil to say, you know, i got a hair appointment next year, got to get my hair dyed, or i got other
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things to do. he could have come up with a million excuses or said to me, mark, my career is too important to me. i'm not going to strap myself into this burning boat and go down with you, okay? excuse me while i get a drink. what he said was, when do you need me? he put his career on the line. i think that tells you a lot about the kind of person neil gorsuch is. so, what america is getting in justice gorsuch is a highly intelligent, principled and experienced man with a deep experience in our civil justice system. it's why i and all of his former partners sent a letter to the senate, you need neil gorsuch on the supreme court. give him 40 independents, republicans and democrats, who won't even agree on the kind of
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coffee to stock in the kitchen, support neil gorsuch. it's an extraordinarily strong letter of recommendation. thank you all. >> now we hear from a panel of judge gorsuch's former law clerks. first up, an adjunct professor at the george mason university scalia law school, directs the national security law program. jamil worked in the office of legal policy and in the white house counsel's office during the bush administration, and he served as the chief counsel and senior adviser for the senate foreign relations committee and senior counsel to the house intelligence committee. he was one of judge gorsuch's first law clerks. he also clerked for edith jones of the 5th circuit, graduate of ucla, university of chicago law school, and the united states naval war college. second we'll hear from jamie nitsa, where her scholarship focuses on national security,
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criminal procedure, and executi executive power. she previously served in the office of executive counsel during the obama administration. jamie is a graduate of harvard law school, as well as harvard college, clerked for judge gorsuch and sonya sotomayor. then matt owen, previously served as chief counsel to senator mike lee, as a bristol office in the and is a graduate of the university of texas at austin and the university of michigan law school. so, jamil, we'll hear from you first. >> great, well, 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'd do just for a few minutes talk a little bit about the person that neil gorsuch, judge neil gorsuch is,
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and the way he sort of affected my life in particular. i saw him in three different capacities over the course of time that i've known him. when i first arrived at kellogg hanson back in 2004, judge gorsuch at the time was a partner at the law firm, and i was a young associate, fresh out of law school, courtship with judge edith jones, and i didn't know anything about the law. i started to meet partners and associates and started to learn about what the practice of law was like. kellogg hansen is a very unique firm. my first ever deposition at the firm was of a former federal district judge, ten years on the bench, having the chief judge of the district, partner at williams and connolly and the chief legal counsel for a major accounting firm, so they really throw you into the deep water fast, but, you know, judge gorsuch at the time was a very approachable person. he's a partner, and you expect the partners to be
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unapproachable, they are intimidating, scary. he was none of those things. now, he was only at the law firm for a couple of months before he headed off to the justice department, and i was there, but the time i got to know him, accessible, down to ert, approachable, and held true during the entire course of the, you know, well over now 13, 14 years that i've known him. so, got to know neil gorsuch a little bit there. the judge at the time, off he goes to the justice department. little did i know that just nine months later, i'd be following to the justice department when mark was kind enough to let me leave the law firm after only nine months there to follow after then judge and now justice roberts and alito and harriet meyers, so it was a really unique opportunity to see judge gorsuch at the time in his role in the associates office. i didn't work directly for him, the component i worked for didn't report for him, it was at the time run by rachel brand,
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now a professor at the scalia law school and has been nominated to be the associate attorney general, the number three at the 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 that i saw him manage an entire set of divisions, the entire civil litigating arm of the justice department, from the associate's office, and he had a very practical view of this. again, very approachable, he was a young man at the time, as mark mentions, he was in his late 30s. i was in my late 20s, early 30s at the same time, and then come to find out that the bush administration was considering nominating him to be a judge on the 10th circuit. i said, this is amazing, right, i knew this guy back when he was a, you know, a young lawyer, a young partner, and now he's a young senior official at the justice department and nominee of the 10th circuit. this is kind of crazy. so my boss says to me, hey, can you do the vetting on this guy? actually, i can't, i knew him at the law firm, i feel i might be
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conflicted out, so i can't really be involved in that, but ultimately did the vetting, decided to nominate him to the court of appeals. now i can help out with the nomination, so i did. this was after all the supreme court stuff had finished, and ultimately he was confirmed to the bench. look, i need to hire some law clerks. i had a friend of mine, heather kirby, who never planned in law school on clerking for any judge and she ultimately ended up clerking for two judges, including judge gorsuch and a district court judge in illinois. i said, you know, this guy, so young, so dynamic, going back to denver, heather's in denver. she would love this young man, so i said you should talk to heather. he did, ultimately hired her, two other friends of mine, mike da davis, who had been a special assistant to the united states attorney and ultimately hired mike, and mike, having gone to clerk for judge gorsuch for a year, is now his own private law practice in denver, completely changed his life, went from
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living in iowa, d.c., to having a solo practice with two other folks in denver, colorado. and so then judge gorsuch had one more spot. he said to me, you should come clerk for me. it's funny, you look back and think to yourself, what an idiot i was back in those days. i scoffed at him, i clerked for judge edith jones, you know, the queen of, you know, the federal judiciary when it comes to folks who are conservative, you know, so i'm not going to clerk for you in denver. that's so crazy. young partners at law firms going to have me come clerk, right? but he made a convincing case, you know, ski season in denver. pretty good point. now, i was afraid actually to leave the justice department at the time because i'd been there for a year. my plan was to go back to kellogg hanson and i said i was a little worried because rachel brand had given me unique opportunities to work on supreme court confirmations right out of law school, i was afraid that kellogg hansen would be like
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you're crazy, now you're going to go clerk again for admittedly a former partner, so i said i'll make you a deal. i'll come clerk for you if you ask rachel. can you imagine what an obnoxious human being it takes to tell a federal judge that's just been confirmed, you go ask my boss, right? 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 him, but let me tell you about who he was as a judge, because i saw him move from being a partner at the law firm to being a federal attorney to being a judge and what was amazing about that transition was, he did it with grace and dignity and honor and did it in a way that makes you think, god, this is a judge's judge, right? went from being an advocate to being a policy deciding lawyer in the justice department, ultimately to being a neutral decision maker. and so going to work for him for the first four months was amazing, because you watch that transformation, but beyond that transformation, you also saw a young man who is, you know, sort
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of coming into his own. and i remember the first day mike davis and i arrived in colorado, he took us alpine sledding. this was on a weekend, so it wasn't a work day, and alpine sledding for those who don't know, is sort of one of the things people do in colorado when the snow's -- when the mountain's not covered in snow. you basically take the track down the mountain down this high-speed rail, try and race each other, and the judge beat both davis and i down the mountain twice and continued to make fun of us for the next six months. come on, you guys are young, dynamic, whatever, and i can beat you down the mountain, old guy like me can beat you down the mountain, pretty embarrassing. then he taught us how to fly fish. loves fly fishing, very normal, down to earth human being. i was so bad at fly fishing, he took the rod out of my hands, i'll get the fish on the line for you, you reel it in. kind of like your dad, right, embarrassing moments. the first thing he asked me to work on was to make sure he handled the ethics of becoming a
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judge properly, to look at all the laws, statutes, regulations, and make sure he handled the fact he was coming out of the law firm, justice department, ethically, so we worked together to ensure he implemented the rules properly, so he would properly take the office and take it seriously. he was serious about that. spent a lot of time revising the memo and looking at the materials and various parties he might recuse from and ultimately making decisions that went well beyond the law and requirement, because he wanted to ensure there was no question he was doing the right thing. that's the same way he approaches the cases. he looks at the law first. he then looks at the arguments the parties are making before him and tries 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 that come in the future. he doesn't look to go beyond the arguments made by the parties, and he doesn't look to go beyond the text of the law. tries to apply the law faithfully as written by
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congress, as drafted by the framers of the constitution and apply it fairly and even handedly to the parties beforehand. with that i'm getting the stop signal, so i'll turn it over to my colleagues. >> yes, i thought i would just start and talk a little bit first about -- taking up on where jamil left off, how the judge approaches cases and end with his personal side. one thing that struck me from day one coming off of law school, in law school they sort of teach you a little bit of a cynical side of the law, teach that in a way the judiciary is a place for politics and judges are politicians in robes, so i came off of law school, had this in mind, so it was a real shock to me to clerk from day one for a judge that conveyed from the moment, you know, the first case i had with him, that that is not how it goes in his chambers. his chamber is all about the rule of law and about a place where judiciary is not a place for doing politics, not a place for personal preferences for the judge, it's a place for rule of
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law, as jamil said, sort of text of the statutes, text of the constitution, where the framers originally understand at the time the constitution was enacted, what does the precedent say, what do the arguments say, so that really struck me, because i have even to this day conversations with friends where they have sort of very cynical view of the judiciary and one thing i feel very blessed about is to have the opportunity to clerk for someone who conveyed to me this deep, deep, deep sense that, you know, a democracy can only function if it is in the elected -- if it is in the representative branches where policies are being done. so that was the 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, didn't matter, with an enormous amount of care and
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respect. i remember one case in particular, i won't get into specifics of it, where it was very much low profile case, was not a case that was going to get into the newspapers, but he had not one, but two clerks to sift through the record, because it was a tricky question that turned on sort of some of the factual aspects of the record and we sifted through for hours and hours and days and weeks to get the right answer. that struck me, as well. and then on a personal side, the way i came to the judge was i put together in law school this list of judges that i wanted to clerk for. i was one of the very early clerks when i was applying he had been on the bench for probably a year and a half. i hadn't heard of him. had my list of 20 or 30 judges i was going to apply for and a friend of mine took a look at the list and said this looks good, but you should really add this judge, judge gorsuch, he just took the bench, i heard him give a speech and he seems just brilliant. and i think you should go and take a look at him.
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so i applied, i was fortunate enough to get an interview with him and confessed reluctantly i wasn't sure did i really want to fly out to colorado, was i going to clerk or not, i wasn't sure, even debating possibly cancelling. so i flew out there, and by the end of the interview, just thought, you know, if he offers me the position, i would just be blessed to clerk for him, because even within the short span of sort of 30 to 40 minutes, i could see was questioning of my writing samples throughout his brilliance and, you know, this incisive questioning and also just what a kind, decent man he was, and there was a real warmth that 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 whenever i have any question about my career or really even some aspects of my personal life, and he takes the time on the phone to talk it through with me, he offers any
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help that he can give, and he's been a true mentor to me and a lot of folks. and on that, i'll just end on one last story, many, many students apply to the supreme court, write in law school and get accepted to a supreme court clerkship right out of law school, and i didn't apply and i don't recall applying during my clerkship, and i thought it was something that was just out of reach, wasn't going to happen for me. and it was really the judge that just pressed day in and day out, you should really apply, that really encouraged me. thanks to him, i was fortunate to have a later experience of the clerkship on the supreme court, and that's just an episode that demonstrates really, you know, his mentorship qualities and how he's looking out for really everyone. so i'll end on that and turn it over to matt. >> thanks, jamie, thanks to the heritage foundation for having all of us. i also wanted to thank mark for his address, which i also
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thought was really interesting. we all came to know -- except jennifer, i guess, the rest of us came to know him after his days as a lawyer, and we have over the years heard some stories, war stories, from mark and his partners and other people who appeared with and against and around the judge when he was a lawyer in civil practice, and we understood that he was a pretty remarkable lawyer, but it's a part of his life that we didn't get to see, so it's nice to hear about. i guess i'll reverse the order in which jamie took this. i want to say something personal about the judge and then maybe say 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 famously very rigorous about interviews. he was a very grueling kind of
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all day process of talking to his law clerks and him about everything i knew, which wasn't very much as a second year law student, and then i had -- i flew basically from that interview to denver to meet someone who i confess i didn't really know very much about, except that his name was neil gorsuch and he was a judge, and that professor of mine who was sort of my mentor in law school, her name is joan larson, who's a terrific judge herself now, was friends with neil gorsuch and said he's new and he's great and you need to go clerk for him. and so i show up in denver, and we have, you know, you talk to his law clerks, then sit down with the judge, and about 30 minutes he managed, while being entirely kind of gentlemanly and polite, to poke at, you know, three or four questions about my writing sample and my classes that were real questions that got to the point, but meanwhile
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to learn what i was planning to do over the weekend while i was there, was i planning to go hiking, where was i going, would i like to stop by his cabin because all the law clerks were going to be there on a hike, make sure i got somebody's phone number to make sure i did that. he was from the beginning, from the first minute before he ever offered me a job, the most welcoming person in the world about being in colorado and being around him and his sort of extended family that became his -- all of his law clerks. it feels like an age ago now, and 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 clerked for him, particularly those of us who clerked a long time ago. i'll also echo something jamie said, as a human being he's tremendously honorable and kind to the people that know him. i can attest that when, you know -- i remember -- everyone
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has rough days, and a particularly rough day in my life, i got a call from the judge who had sort of heard about it, and he made it -- all i can say about it, he made it his business to make sure that whatever was going on was going to be put right, and he was going to do that himself, which he did. and it was -- it meant a lot. it meant a lot to me. and in particular because i had the privilege to clerk for justice scalia, whose seat this is, it is really 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 is also a good man. i will -- 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
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dissents. i don't think you can look forward to quite the same kind of biting dissent from neil gorsuch as we used to enjoy reading from justice scalia, but what i do think you can expect is a similar approach to the law, you know, tex chulism when it comes to statutes and originallyism and history in the law when it comes to the constitution. if anyone remembers when they were in, like, grade school or high school having to die ya gram sentences, there is a published decision by the judge by putting a sentence diagram in the opinion and it actually makes it very clear. which word does this phrase modify, well, i'll show you, right? that's -- it illustrates a really deep commitment to the things that for me it's important to say justice scalia kind of taught us all. after he died, everyone took a
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moment to notice how much justice scalia had changed the way lawyers and judges talk and think about the law, and one way you know that is that, you know, nearly 30 years after justice scalia became a justice, the person whose naominated to take his seat is someone who diagrammed a sentence, rather than leafing through the legislative history. i was going to say something 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 attitude towards civil litigation. he was a trial lawyer, and he understood the part of his job as court of appeals judge was to ensure that trial litigation is efficient and fair, and so years after i clerked there, i got a, you know, he sends out his opinions to his law clerks, you know, occasionally. we pretend that we read them all, but we read some of them. and i remember reading them that was a published opinion of the
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10th circuit and anyone who's watching who's a lawyer will know what this means, about a discovery dispute. what had happened is a trial judge had sanctioned a party for not producing a document suppos time, and then told to do it a second time and still didn't do it and the trial judge lost their temper and dismissed the case. and maybe in the course of dismissing the case, the judge didn't 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. the judge wrote a opinion that was cited a lot. and district judges are grateful for, which says, no, no, no, discovery is not a shell game. 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
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fine. right. and it is a small thing, but actually 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 a lot of time, because court of appeals judges don't like to hear discovery cases. they like to write about constitutional law and the fourth amendment and religious freedom and all the things we like to talk about, but the judge gorsuch understood part of his job is to make sure that ordinary litigation is conducted as efficiently and as fairly 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 them 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
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identify yourself. and, please, ask a question, don't make a speech. any takers? over here. >> yeah. hi. paul cabinar. 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 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 certifications there or be part of the surp pool. i would like to know 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 --
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no longer -- for those of you know, the justices, most of them except justice alito pool their law clerks to help review the surpititions that come. it is a tedious part of every law clerk's week. justice alito is not in that process. he likes to review -- have his clerks -- review all the petitions under his own standards. that wasn't true the first year he was on the court. as i remember, justice alito was in the sert pool for a while, and then 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. but i also -- 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 has an opinion about that, he's, i think, there are a number of
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cases where like justice scalia, if the law says the defendant gets to win, the defendant gets to win, and that's the end of it. sometimes there are particular cases where the judge has taken a rigorously textural approach to a criminal statute that disfavored the government and his opinions, to me, reflect the same kind of approach to that that justice scalia had. >> and 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 interesting about justice jackson, he took on the role of a judge 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 jurisprudence and will say that was a man who took that craft seriously. judge gorsuch is similar in that way in the sense that, you know, he's having been a justice department senior official, that
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doesn't bring any baggage. he looks at the law for what it is and decides the case on the law, not on the view of how this should come out, whether for the government or for the defendant at the end of the day. he's 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 this, i think 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 alluded to, a lot of folks talking about the writing style and how clear it is. and part of that, i think, much in the line of justice jackson
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is about having ordinary americans understand what the law requires of them. so a little bit, overcriminalization point he wants the americans to feel either to both read this texas statute under what is required of them. >> thank you. wonderful panel, star park, the center for urban renewal and education and syndicated columnist. mr. jaffer, you mentioned several times now he looks to existing law and i'm wondering you said looks at the law first, is that existing, all laws leading up to the existing law, is it the way that 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're going to have a law that was -- that existed at the time the
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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, this is true both on the conservative side of the speck trim and lower side of the spectrum, we don't get the outcome we like in the political process, we run to the courts and say, courts, you saw this for me, you fixed the law because i didn't get what i wanted out of the political process. this is the problem on both sides of the aisle. i think judge gorsuch's view of the judiciary and correctly, based on our framer's judiciary, that's not the job of judges. a problem with the laws, there is a way to do that. with elected officials, you can vote them out of office. you don't go running to the courts and have the court solve the problem for you. when you have a case before the court, it is important that the judges look at the law and apply
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it fairly feerts befoparties be. doesn't matter what the judge thinks the right answer should be, the question is what is the right answer under the law. that's really important. i think that's what in a lot of ways makes judge gorsuch a judge's judge. that's what i think we want. i think even though we often run to the courts as a very litigious society, americans 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 the supreme court, i think 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 a supreme court justices. do you see any of the current justices and gorsuch becoming fast friends? >> i can take a stab at this.
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the judge is sort of known on the 10th circuit as being friends with everyone on the 10th circuit, back to a personal, warm, warm guy and so i can't speak to any particular justice, but i would certainly expect that he would fit in well with the court and he would make fast friends with all of them. >> 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 he's looking forward to that. >> i think we have time for one more question. if not, well, join me in thanking our panel. [ applause ]
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and that wraps up this event on supreme court nominee neil gorsuch. if you missed any of this program, it will be available to view online shortly at just type heritage foundation into the search bar. and, of course, judge gorsuch's confirmation hearing is coming up. it is scheduled to last at least two days starting on march 20th. we'll have it for you live on the c-span networks. check for coverage plans. u.s. senate is due back for business today at about 2:00 p.m. eastern. lawmakers will continue working on the nomination of seema verma to be the next administrator of the centers for medicare and medicaid services. a vote on her confirmation is
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today at 5:30 p.m. eastern. you can watch the senate live on c-span2. tonight, on the communicators, michael powell, president and ceo of ncta, the internet and television association, talks about major issues facing the industry and what we might see from the new fcc chair ajit pai. mr. powell is interviewed by lydia bayud, tech and telecom reporter for bloomburg bna. >> can you speak more specifically about the opportunities and what this change in leadership from democrat to republican, from tom wheeler to ajit pai, as chairman, what does that mean in your industry? >> chairman pai is a visionary. i think he's very focused on the concept we heard for many years with the exception of the last commission about light touch. the understanding that this market moves at break neck speed. it is a huge amount of futility to some of these regulatory machines. by the time they're over, this
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market has shifted radically. that businesses don't have the luxury of sitting on decisions for six months, eight months, a year before they have to make decisions and i think the new commission is committed to the kind of speed of action. >> watch the communicators, tonight, at 8:00 eastern on c-spa c-span2. south carolina republican senator lindsey graham held a town hall meeting at clemson university earlier this month. he took several questions from constituents and a broad range of topics including republican efforts to repeal and replace president obama's health care law. the state of public education, and environmental protection and regulations, and russia and the 2016 elections. this is just under 90 minutes. >> play ball. so we're going to be done, so we can go to the clemson/carolina baseball game which starts at


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