NYT Dumped The Biggest Nothing-Burger Yet On Neil Gorsuch

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Kevin Daley Supreme Court correspondent
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An ominous headline lurks on the front page of Wednesday’s New York Times, tantalizing readers with word of Judge Neil Gorsuch’s “web of ties” to a “secretive billionaire.”

The Times reports that Gorsuch, President Donald Trump’s nominee to succeed the late Justice Antonin Scalia on the Supreme Court, has something of a patron in Philip Anschutz — net worth $12.6 billion — an investments magnate who leverages his fortune to finance conservative groups, including the Heritage Foundation and the Federalist Society.

Gorsuch’s ties to Anschutz prove far less interesting than the headline suggests. The judge was retained to represent Anschutz when he was an attorney in private practice at Kellogg, Huber, Hansen, Todd, Evans & Figel, an elite boutique operation based in Washington, D.C. In this capacity, Gorsuch represented several of the billionaire’s companies as well as their corporate officers. A review of these cases conducted by the Times shows the work consisted of garden-variety litigation. The most interesting case appears to be a dispute over a $710 million extraordinary dividend.

One of the firm’s partners, Mark Hansen, told the Times Gorsuch was assigned the work “because of his skills and experience and because he had expressed to me an interest in getting involved in things relating to his home state.” Anschutz, like Gorsuch, is based in Colorado.

Another lawyer representing the billionaire, Bruce Black, wrote a letter to the George W. Bush administration’s White House Counsel, Harriet Myers, in Jan. 2006, asking the White House to consider Gorsuch for a seat on the 10th U.S. Circuit Court of Appeals, the Denver-based appeals court. Gorsuch secured the appointment and was unanimously confirmed by the Senate later that year, but it is unclear what role, if any, Black’s letter played in the White House’s selection process.

In fact, it’s extremely unlikely the letter was of any consequence. The judicial selection process takes place on an ongoing basis during the course of an administration. Prospective nominees are vetted by lawyers and staffers across the executive branch over the course of many months, or often years, in order to maintain a standing pool of candidates to fill vacancies as they arise. Gorsuch’s nomination came in May 2006, a mere five months after Black’s letter. This strongly suggests he was being considered for an appointment well in advance of Black’s correspondence.

Aside from these fairly unremarkable revelations, the Times raises the prospect of conflicts of interest, should Gorsuch win confirmation to the Supreme Court. As Anschutz’s many companies sprawl across dozens of industries and states, it is conceivable litigation involving his business interests would one day appear before the high court. His previous work, they fear, could undercut his impartiality, or at least create the appearance of impropriety.

But as The National Law Journal’s Tony Mauro recently showed, Gorsuch has assiduously adhered to ethics rules during his tenure on the 10th Circuit. He has recused himself from over 1,000 cases, often on the basis that they involved a former client or colleague. The Times itself concedes there is no reason to believe this would change should Gorsuch join the Supreme Court.

The piece concludes by noting that Gorsuch and two individuals the Times describes as Anschutz’s “top lieutenants” jointly own land in Colorado, which they use as something of a secluded fly-fishing getaway. The judge is an avid outdoorsman — he was skiing the Rockies when he learned of Scalia’s death in February 2016.

The real news in the piece comes in its remarkable concession in the sixth graph.

“But it is not clear how well the two know each other,” the Times writes of the judge and the billionaire, as if to apologize for the forthcoming banality.

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