Gorsuch Takes Audience Behind The Scenes of High Court in Archives Appearance

September 17, 2019 by Dan McCue
U.S. Supreme Court Justice Neil Gorsuch at the National Archive. (Screen grab by Dan McCue)

WASHINGTON – Associate Justice Neil Gorsuch may have been President Donald Trump’s first appointee to the high court, but onstage at the National Archive Monday night he seemed almost a throwback to a more gentlemanly and light hearted era.

“I’m an optimist,” the 52-year-old said more than once during an interview with David Ferriero, Archivist of the United States, in the archive’s William G. McGowan Theater.

Gorsuch’s appearance was a stop on a current book tour to promote “A Republic, If You Can Keep it,” a 323-page book of essays, articles and judicial decisions in which he sets out his views on the separation of powers in American government to the role of judges to the importance of civility and ethics to contemporary society.

The event also happened to come on the eve of Constitution Day, commemorating the day in 1787 when delegates to the Constitutional Convention signed the document in Philadelphia.

Although he did reflect on history during his hour-plus long talk, it was when Gorsuch spoke of his personal experiences related to the court that he was at his most engaging.

His nomination to replace the late Justice Antonin Scalia “more or less changed my life in every conceivable way overnight,” Gorsuch said.

Prior to getting the call from President Trump in January, Gorsuch said he was living a “very quiet and happy life” with his wife Louise in a little town outside of Boulder, Colorado, and was greatly enjoying his work as a judge on the 10th U.S. Circuit Court of Appeals.

“If there’s one story that’s emblematic of what happens to you once you’re a Supreme Court nominee it’s this,” he said. “We were told the president was very committed to my nomination being a surprise. So we had to sneak out of our house in Colorado and then sneak into the White House, which turns out to be pretty tricky.”

In the end, the Gorsuchs were brought into 1600 Pennsylvania Avenue through the kitchen.

“Which turned out to be pretty neat because I’m a history buff, and when you go down into the kitchen you can still see the scar marks from the fires from the War of 1812,” Gorsuch said.

Once inside, “the president very graciously allowed me to use the Lincoln bedroom as an office for the day, and that’s where I prepared my remarks for the announcement for later that evening.”

Knowing the justice’s wife is British, Trump gave her use of the Queen’s bedroom, from which, just before the announcement, she placed a call to her father back in the United Kingdom.

“She said, ‘Dad, you’re never going to believe it, it’s going to be Neil.’ And my father-in-law said, ‘Darling, I’ve been watching your American news and they say it’s going to be this other fellow. They’ve got footage of him driving into a gas station on his way to Washington. I’m pretty sure it’s going to be him.'”

Despite assurances from his daughter that they were indeed in the White House, and the president was “right down the hall,” Louise’s father was unconvinced.

“‘Well, there you go, ‘he’s down the hall. He could still change his mind,'” her father said.

Smiling widely at the memory, Gorsuch shrugged.

“In-laws,” he said.

CRAZY PROCESS, TOUCHING MOMENT

That wasn’t the only glimpse Gorsuch gave into the hectic days between his nomination and his joining the court on April 10, 2017.

Once he was a nominee, he now had around the clock protection by U.S. Marshals. One night they apprehended a man who jumped from a truck and approached the Gorsuch home with a white substance.

The next morning Louise Gorsuch received a call from the company that delivered the couple’s milk, informing her that their usual milkman, a man who had been delivering their milk for years, would no longer be doing so.

“It took a bit of investigation on our part to get to the bottom of what happened,” Gorsuch said. “When Louise finally asked the Marshals what had happened they said, ‘Yes ma’am, there was an incident. … and the individual ended up in the prone position.'”

“Louise being Louise took one of the chocolate towers over to the delivery driver as an apology … but I’m not sure he ever totally got over it,” he said.

Ferriero then reminded the judge of the role the National Archives played in his confirmation.

“The Senate Judiciary Committee called and asked for everything we had related to you … it turned out to be 13,285 electronic assets, including 2,700 specifically related to your nomination to the 10th Circuit 10 years earlier,” he said. “In all, those records amounted to 19,438 pages, 522 Microsoft spreadsheets and 8 Microsoft Access databases.”

“My apologies,” Gorsuch said, but then offered that Ferriero had helped make his point.

“One day, you’re living a quiet life; the next, everybody in America knows who you are. … that’s a little disconcerting at first,” he said. “Here you are, slurping your noodles in a restaurant, and you suddenly realize someone is videotaping you.”

“But then I realize, when God takes something away, he usually gives you something in return, and what I got was an opportunity to see personally how much the American people love this country and love their Constitution.”

Gorsuch acknowledged that during the “crazy process” of confirmation he heard from people who liked the president and loathed him. They’d say things like, “I don’t support the president, but I wish you and your family the best.”

One interaction proved especially memorable.

“I was on a flight from Denver to Washington and was feeling a little frazzled, and seated next to me was a little girl who was probably about six years old,” Gorsuch. “Well, we hit some rough turbulence and she asked would I mind if she held my hand.

“So we held hands for about 20 minutes, and when the turbulence ended, she said, “And now would you like to draw? And we spent the next two-and-half-hours with our coloring book.”

The little girl had no idea who she was talking to, but at the end of the flight, the girl’s mother, who had been sitting in the row behind them, recognized Gorsuch.

Shortly after joining the court, Gorsuch got what he described as his “favorite thank you note” from the family.

“It was a drawing the little girl had done of an airplane, with two stick figures standing in front, and it said, “Thank you for holding my hand.” And the stick figures were us, holding hands,” he said. “That’s the American people. And that’s what I get to see day in and day out.”

Gorsuch has said he wrote “A Republic, If You Can Keep It” for Penguin Random House because he believes Americans should remember that their political opponents “love this country as much as they do.”

JUDGES NOT POLITICIANS IN ROBES

In his book and on the stage, Gorsuch made a plea for kindness and manners, recounting advice from the English grandmother of his wife, who told him that he would regret things he did and things left undone, but that he would never be sorry for being kind.

He also recalled that George Washington had to copy by hand all 110 rules of civility that were written by the Jesuits in 1595.

On Monday night, he paraphrased one that he particularly liked.

“Do not speak so closely to another person with such enthusiasm that you bedew the other man with your spittle,” he said. “It’s a good rule.”

Another point Gorsuch strove to emphasize — and a common refrain among the justices when they speak in public — is that judges are not politicians in robes.

“That was one of the things that really struck me during the confirmation process, that people expected me, as a judge, to promise to do certain things or move in certain ways in cases that I haven’t heard,” he said. “The reality, of course, is exactly the opposite. You hear the case, then render a decision based on the precedents.

“It’s one thing to think that judges occasionally make mistakes through human error and follow their personal views of what the law demands, but it’s another thing entirely to think that’s the way it should be,” Gorsuch said.

The justice also made clear that he is committed to Scalia’s view that the justices should rely on the “original meaning” of the words in the Constitution and in federal laws when deciding cases.

“Originalism isn’t political. It’s not conservative or liberal. It’s all about believing that judges should base their decisions on the Constitution that you have and not try to add or take anything away from it,” Gorsuch said. “Now, I’m not going to sit here and say the Constitution can’t stand improvement. If you want to change it, you can. And we have.

“We’ve made some terribly important improvements through the amendment process,” he said. “We don’t need judges to make it up. You can fix it. And you have, you have given women the right to vote. You enacted the 13th and the 14th and 15th amendments to the Constitution, ending slavery. So why ask somebody else to do what you can do for yourself? The Constitution starts with three words, and they aren’t ‘We The Judges.'”

36 HAND SHAKES

Gorsuch closed by taking aim at the idea that the Supreme Court is an ideological battlefield were 5-4 decisions are more frequent and dissents more reflective of philosophical animus among the justices.

He noted the court takes up roughly 70 cases a year and decides most unanimously.

“Bear in mind, these are the tough cases, the ones our lower court colleagues could not agree on,” the justice said.

At the end of the day, Gorsuch said, true split decisions occur only 25% to 30% of the time, but he pointed with satisfaction to the fact that percentage hasn’t changed since 1945 when, “as history buffs will remember, eight of the nine justices had been appointed by President Franklin Delano Roosevelt.”

“If we’re doing as well as they did forming a consensus on cases, then I think we’re doing okay,” he said.

“The other thing I don’t think people understand is that when you hear the court render a 5-4 decision, it’s not the same 5 justices in the majority. If you look at the 5-4 decisions from this past term, there were 10 different combinations of judges in the majority.”

“That doesn’t happen by magic,” he said. “It stems from mutual respect.”

The truth, Gorsuch said, is that life at the Supreme Court is “very collegial and warm.”

“It’s a tiny little place,” he said. “Only a couple of hundred people work there, so you get to know people. Their kids trick or treat at our offices. We flip hamburgers at the court cookout. And we even let our clerks make fun of us with a show at the end of the year … That’s the whole other story of the court.

“Of course, you’re going to disagree from time to time when you’re taking on the 70 hardest cases in America, but at the same time, we’re human beings,” he said. “We sing happy birthday to one another, poorly but enthusiastically. We shake hands every time we gather to hear a case or render a decision. No matter how heated the topic. No matter what’s going on, we exchange those 36 handshakes. We eat lunch together an awful lot – every day we had a conference or argument. But we never talk shop at lunch. Justice [Stephen] Breyer’s grandchildren are a nearly bottomless reservoir of “knock-knock” jokes.”

And there are practical jokes too. One day as the justices donned their formal robs, Justice Sonya Sotomayor pulled on a very (what?) version, hers had pinstripes and a New York Yankees logo.

“I guess the Yankees had been doing well, and she was pretty excited about it. But as we waited to go into the courtroom, I think a few of the justices were getting a little nervous about it. Finally one of them says, ‘Sonya, are you really going to wear that? It might look kind of weird on the bench.’ And she laughed. ‘I was just waiting for someone to say something!’ she said, continuing to laugh,” Gorsuch said.

Finally, he brought up another tradition he hoped would dispel any rumors of dissention on the court — the welcoming of a new justice.

“It’s an obligation that falls to the most junior justice,” Gorsuch said. “Everything at the court is done by seniority and in this case, the most junior justice throws a welcoming party. In my case, Justice [Elena] Kagan created a most wonderful evening for us. She had done her research and knew Louise loves Indian food, and she got a chef she knew here in Washington to prepare it for us … and it was magnificent.

“And then Justice [Brett] Kavanaugh arrived and the duty fell to me,” he said.

Kavanaugh was known as a “kind of meat and potatoes guy” so the menu wasn’t going to be the highlight of the evening, Gorsuch said.

“Still, I had to come up with something special,” he said.

As it happened, Justice Kavanaugh is a huge baseball fan and loves the Nationals.

Jessica Barlow, a long time aide to Gorsuch, suggested renting the Nationals’ famous “racing presidents.”

“So after dinner I said, ‘Everybody, please follow me,’ and we went down to the Great Hall of the Supreme Court, and I handed the Chief Justice a checkered flag and we had two of them race around the rotunda.

“Now, that was a situation where I thought maybe I should ask for forgiveness rather than permission, but I think it went over pretty well,” Gorsuch said.

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