1
00:00:00,040 --> 00:00:02,760
Speaker 1: You're listening the Bloomberg Law with Jim Grasso, New York

2
00:00:02,840 --> 00:00:07,720
Speaker 1: and Gregg's Store here in our Washington studios. Moments ago,

3
00:00:07,800 --> 00:00:10,039
Speaker 1: President Donald Trump said he is on the verge of

4
00:00:10,080 --> 00:00:12,960
Speaker 1: nominating somebody to fill the year old vacancy on the

5
00:00:13,000 --> 00:00:18,360
Speaker 1: Supreme Court. We have outstanding candidates, and pop will pick

6
00:00:18,440 --> 00:00:22,840
Speaker 1: a truly great Supreme Court justice. But I'll be announcing

7
00:00:22,840 --> 00:00:26,599
Speaker 1: it sometime next week. And a new name has gained

8
00:00:26,600 --> 00:00:29,880
Speaker 1: prominence in recent days. It's Neil Gorsch, a judge on

9
00:00:29,920 --> 00:00:33,000
Speaker 1: the tenth US Circuit Court of Appeals in Denver. Both

10
00:00:33,040 --> 00:00:35,920
Speaker 1: ABC and CBS say he is now the front runner

11
00:00:35,960 --> 00:00:38,840
Speaker 1: for the nomination. The forty nine year old Gorstch comes

12
00:00:38,840 --> 00:00:42,360
Speaker 1: with sparkling credentials, including degrees from Harvard Law School, graduating

13
00:00:42,400 --> 00:00:45,360
Speaker 1: the same year as Barack Obama, and the University of Oxford.

14
00:00:45,760 --> 00:00:48,600
Speaker 1: His appeals court nomination by George W. Bush sailed through

15
00:00:48,600 --> 00:00:51,080
Speaker 1: the Senate in twenty six and over the past decade

16
00:00:51,120 --> 00:00:54,560
Speaker 1: he has assembled a solid conservative record. What would Neil

17
00:00:54,600 --> 00:00:57,160
Speaker 1: Gorsuch mean for the Supreme Court? We have two guests

18
00:00:57,160 --> 00:01:00,400
Speaker 1: to help us figure that out. Jane Knitze, clerk for

19
00:01:00,600 --> 00:01:03,959
Speaker 1: Gorsch on the tense circuit in twenty nine. She's now

20
00:01:04,000 --> 00:01:06,840
Speaker 1: a fellow and lecturer at Harvard Law School. And Eric

21
00:01:06,880 --> 00:01:09,559
Speaker 1: Citron of the law firm Goldstein and Russell he looked

22
00:01:09,560 --> 00:01:13,319
Speaker 1: into Gorstage's tense circuit record for the website's go to blog,

23
00:01:13,920 --> 00:01:16,840
Speaker 1: Welcome to you both, Jane. Let me start with you,

24
00:01:17,520 --> 00:01:20,959
Speaker 1: since you clerk for him, just answer a basic question,

25
00:01:21,400 --> 00:01:26,680
Speaker 1: what is Neil Gorstage like? Sure, well, that's an easy question. So,

26
00:01:27,280 --> 00:01:29,360
Speaker 1: having clerked for him, and you know we stay in

27
00:01:29,400 --> 00:01:31,240
Speaker 1: touch over the years, I can say, first and foremost,

28
00:01:31,319 --> 00:01:33,720
Speaker 1: just taking off from our obvious points, he is an

29
00:01:33,920 --> 00:01:38,240
Speaker 1: absolutely brilliant jurist. Uh. Eric made that point his blog post,

30
00:01:38,280 --> 00:01:42,959
Speaker 1: and I think that everyone can agree that he's exceptionally qualified. Um. Also,

31
00:01:43,120 --> 00:01:45,080
Speaker 1: you know, what we see, what I saw a front

32
00:01:45,200 --> 00:01:47,240
Speaker 1: um when I clerked for him, is that he's an

33
00:01:47,280 --> 00:01:49,800
Speaker 1: incredibly good writer. He takes a great amount of care

34
00:01:50,280 --> 00:01:52,920
Speaker 1: in crafting his judicial opinions, and so it was it

35
00:01:53,080 --> 00:01:55,600
Speaker 1: was not unusual for us to go back and forth

36
00:01:55,640 --> 00:01:58,720
Speaker 1: on draft, you know, ten twenty thirty four times, I

37
00:01:58,760 --> 00:02:02,480
Speaker 1: think one draft in our resource sevent d drafts by

38
00:02:02,520 --> 00:02:05,880
Speaker 1: the end, and he takes really a great deal of

39
00:02:05,960 --> 00:02:09,560
Speaker 1: care and crafting, you know, his his opinions, and I

40
00:02:09,600 --> 00:02:12,320
Speaker 1: think that he uh, he now is widely regarded as

41
00:02:12,360 --> 00:02:14,360
Speaker 1: one of the most talented writers on the bench today.

42
00:02:14,360 --> 00:02:20,480
Speaker 1: And with with you know, with good reason, go ahead,

43
00:02:22,000 --> 00:02:25,160
Speaker 1: go ahead, Jane, Oh, I'm sorry. Uh. I also would

44
00:02:25,200 --> 00:02:29,680
Speaker 1: say that, you know, he's an incredibly fair, fair judge.

45
00:02:29,720 --> 00:02:32,520
Speaker 1: What matters to him is not at all his personal

46
00:02:32,639 --> 00:02:36,200
Speaker 1: policy preferences. Those were never discussed in chambers. Um. The

47
00:02:36,240 --> 00:02:38,440
Speaker 1: only thing that mattered to him was what the law said,

48
00:02:38,480 --> 00:02:41,320
Speaker 1: what the Constitution said, and that's how deside the case

49
00:02:41,400 --> 00:02:44,320
Speaker 1: and what the president was. Of course, So Eric, you

50
00:02:44,440 --> 00:02:48,760
Speaker 1: wrote about him and you compared him in many respects

51
00:02:48,800 --> 00:02:53,720
Speaker 1: to Justice Antonin Scalia tell us, Yeah, sure, I mean

52
00:02:53,760 --> 00:02:56,160
Speaker 1: I think I can't take credit for the comparison. That's

53
00:02:56,200 --> 00:03:00,840
Speaker 1: one that's uh, that's become pretty common. Uh, and I

54
00:03:00,880 --> 00:03:04,840
Speaker 1: think he's even spoken about it himself. Um, but you know,

55
00:03:05,360 --> 00:03:10,280
Speaker 1: Justice Scalia's judicial philosophy and Judge gorsuch As judicial philosophy,

56
00:03:10,360 --> 00:03:15,680
Speaker 1: I think, uh, interact um very closely, or have a

57
00:03:15,680 --> 00:03:18,960
Speaker 1: lot of strong parallels. I think that that's clearest on

58
00:03:19,560 --> 00:03:22,120
Speaker 1: issues of textualism, that is, you know, we should try

59
00:03:22,120 --> 00:03:26,280
Speaker 1: to read both the Constitution and statutes to mean pretty

60
00:03:26,360 --> 00:03:30,360
Speaker 1: much what they say in the plain English kind of

61
00:03:30,440 --> 00:03:34,160
Speaker 1: way and not in graphed A lot of judge made

62
00:03:34,280 --> 00:03:39,720
Speaker 1: ideas onto either the laws or the constitution. Uh, and

63
00:03:39,840 --> 00:03:42,240
Speaker 1: that results, I think in a pretty limited view of

64
00:03:42,240 --> 00:03:48,040
Speaker 1: the judiciary, and it's appropriate ken and um, you know,

65
00:03:48,080 --> 00:03:52,640
Speaker 1: I also think that Judge Gorsechu comes across as somebody

66
00:03:52,840 --> 00:03:56,520
Speaker 1: who cares a lot about uh you know, what I

67
00:03:56,520 --> 00:03:59,080
Speaker 1: would call an objective view of the law. I think

68
00:03:59,120 --> 00:04:02,040
Speaker 1: he thinks, you know, there are right answers if you

69
00:04:02,160 --> 00:04:06,280
Speaker 1: just think about it hard enough, pay attention to the arguments,

70
00:04:06,480 --> 00:04:09,960
Speaker 1: pay attention to the precedents, you will know how the

71
00:04:10,000 --> 00:04:13,200
Speaker 1: case ought to come out. And um, you know that

72
00:04:13,320 --> 00:04:16,279
Speaker 1: that ideally everybody ought to be able to agree about it.

73
00:04:16,800 --> 00:04:19,560
Speaker 1: I'm not sure if that's a position that makes him

74
00:04:19,600 --> 00:04:23,080
Speaker 1: moderate or not. You know, I think Justice Scalia believe

75
00:04:23,200 --> 00:04:25,520
Speaker 1: that and managed to vote on the right side of

76
00:04:25,560 --> 00:04:30,640
Speaker 1: the court with great consistency. But I do think it's

77
00:04:30,680 --> 00:04:37,360
Speaker 1: somebody who he doesn't strike you as someone who, um

78
00:04:37,600 --> 00:04:39,599
Speaker 1: doesn't take the side the arguments of the other side

79
00:04:39,600 --> 00:04:42,920
Speaker 1: seriously or the like. He's like Jane said, he comes

80
00:04:42,920 --> 00:04:46,080
Speaker 1: across an exceedingly fair minded judge Jane. Of course, being

81
00:04:46,080 --> 00:04:48,080
Speaker 1: an appeals court judge is different from being a Supreme

82
00:04:48,120 --> 00:04:52,760
Speaker 1: Court justice. But given that, uh, is judge Gorst's somebody

83
00:04:52,839 --> 00:04:56,200
Speaker 1: who tends to want to push the law in a

84
00:04:56,240 --> 00:04:59,680
Speaker 1: particular direction, or is he somebody who is more inclined

85
00:04:59,720 --> 00:05:04,279
Speaker 1: to rule narrowly in a given case? Well, I think

86
00:05:04,880 --> 00:05:07,080
Speaker 1: to the point you just raised in your question, one

87
00:05:07,080 --> 00:05:09,280
Speaker 1: thing to remember is that the job or court judge

88
00:05:09,320 --> 00:05:11,800
Speaker 1: is really to follow in particular source of Supreme Court

89
00:05:11,839 --> 00:05:14,839
Speaker 1: precedent if it exists, And certainly in chambers, he always

90
00:05:14,839 --> 00:05:16,479
Speaker 1: wanted to know what the Supreme Court has said, and

91
00:05:16,520 --> 00:05:19,640
Speaker 1: he wanted to follow it. Um. That said, he wasn't

92
00:05:19,640 --> 00:05:25,120
Speaker 1: afraid to criticize um precedent where warrn did Um And

93
00:05:25,279 --> 00:05:27,800
Speaker 1: quite the contrary. In the administry of law arena, he

94
00:05:27,839 --> 00:05:30,760
Speaker 1: has been a sort of vocal critic of the Chevron

95
00:05:31,160 --> 00:05:35,320
Speaker 1: deference doctrines. Um. But it's hard to say, I mean

96
00:05:36,120 --> 00:05:38,880
Speaker 1: just speaking generally through a narrow or abroad I mean,

97
00:05:38,920 --> 00:05:41,800
Speaker 1: he really just approaches the case. He looks at the

98
00:05:41,839 --> 00:05:44,240
Speaker 1: constitution if that issue, he looks the law, and he

99
00:05:44,279 --> 00:05:48,760
Speaker 1: decides the case corn to what the constitutional law dictates. Eric,

100
00:05:49,000 --> 00:05:52,800
Speaker 1: he has not written about Roe v. Wade. I understand

101
00:05:53,279 --> 00:05:58,200
Speaker 1: from his views on religion. Can we figure out what

102
00:05:58,240 --> 00:06:00,320
Speaker 1: he would think about Roe v. Wade? Is he like

103
00:06:00,440 --> 00:06:04,120
Speaker 1: Schooly in that way? I mean, to be perfectly honest,

104
00:06:04,400 --> 00:06:08,040
Speaker 1: I would have no comfort making predictions are talking about

105
00:06:08,080 --> 00:06:11,640
Speaker 1: that um, not for political reasons, but because I literally

106
00:06:11,640 --> 00:06:17,520
Speaker 1: have no idea. UM. I will say that the limited um,

107
00:06:18,080 --> 00:06:21,800
Speaker 1: you know, the sort of judicial minimalism attitudes that come

108
00:06:21,800 --> 00:06:25,000
Speaker 1: across from his opinions and his attitudes about unwritten aspects

109
00:06:25,000 --> 00:06:28,280
Speaker 1: of the Constitution, would suggest that he's not going to

110
00:06:28,400 --> 00:06:33,640
Speaker 1: be a particularly strong vote for something like the right

111
00:06:33,680 --> 00:06:37,159
Speaker 1: to privacy that underlies growing in Swade, because you can't

112
00:06:37,240 --> 00:06:40,480
Speaker 1: find it in the text of the Constitution. That said,

113
00:06:41,240 --> 00:06:44,640
Speaker 1: you know, when people reach the court, they can have

114
00:06:44,920 --> 00:06:48,720
Speaker 1: very different views about things the Court has already decided

115
00:06:48,760 --> 00:06:52,279
Speaker 1: and how much respect they want to accord to their colleagues,

116
00:06:52,320 --> 00:06:56,360
Speaker 1: on issues that have been percolating for those judges for

117
00:06:56,480 --> 00:07:00,240
Speaker 1: several years and on which you haven't yet have the

118
00:07:00,320 --> 00:07:03,080
Speaker 1: chance to think as a Supreme Court justice rather than

119
00:07:03,080 --> 00:07:07,320
Speaker 1: a lower court judge. Uh. And so it's it's just

120
00:07:07,600 --> 00:07:11,320
Speaker 1: very very hard to predict how once he gets there

121
00:07:12,040 --> 00:07:15,160
Speaker 1: he'll be thinking about questions like that one. It just

122
00:07:15,280 --> 00:07:18,520
Speaker 1: isn't something he's touched on. I will say, also, you know,

123
00:07:19,200 --> 00:07:22,200
Speaker 1: the religion cases that Judge of course has been involved

124
00:07:22,240 --> 00:07:24,840
Speaker 1: in have a lot more to do with questions of

125
00:07:25,280 --> 00:07:30,520
Speaker 1: pluralism than they do with questions than like expressing a

126
00:07:30,640 --> 00:07:34,640
Speaker 1: pro religious view as such, or like voting as a

127
00:07:34,760 --> 00:07:37,640
Speaker 1: religious person or anything like that. I think Judge or

128
00:07:38,040 --> 00:07:41,000
Speaker 1: definitely has a view, like Justice Scalias and other folks

129
00:07:41,040 --> 00:07:44,480
Speaker 1: on the Court that we're just not tolerant enough of

130
00:07:45,320 --> 00:07:49,080
Speaker 1: expressions of religiosity and public which are not really intended

131
00:07:49,120 --> 00:07:53,320
Speaker 1: to make people of other religions feel like they don't

132
00:07:53,320 --> 00:07:56,280
Speaker 1: belong or anything like that. I don't think that necessarily

133
00:07:56,320 --> 00:07:58,520
Speaker 1: translates to a view one way or another about things

134
00:07:58,520 --> 00:08:01,400
Speaker 1: like row being We only have about a minute left,

135
00:08:01,400 --> 00:08:03,520
Speaker 1: but but just tell me, is you look at Justice

136
00:08:03,560 --> 00:08:05,920
Speaker 1: Scalia and what he represented, and you look at Judge Gorcich,

137
00:08:06,640 --> 00:08:09,600
Speaker 1: where would you see the biggest areas, if any of

138
00:08:09,600 --> 00:08:15,280
Speaker 1: of significant differences between the former and the latter. So

139
00:08:15,360 --> 00:08:18,160
Speaker 1: I think the similarities far away the differences, to be

140
00:08:18,160 --> 00:08:21,240
Speaker 1: perfectly honest, on the substance, I think Eric and his

141
00:08:21,240 --> 00:08:23,800
Speaker 1: blog post pointed out the one area where there is

142
00:08:23,840 --> 00:08:27,320
Speaker 1: some difference, which is the administrative law area. Um. The

143
00:08:27,840 --> 00:08:32,200
Speaker 1: Justice uh Scolia was a proponent of Chevron difference doctrine,

144
00:08:32,880 --> 00:08:35,240
Speaker 1: which means differring to that just means deferring to the

145
00:08:35,280 --> 00:08:39,400
Speaker 1: agency's interpretation of a statute right exactly exactly. Thank you, UM.

146
00:08:39,440 --> 00:08:42,960
Speaker 1: And Judge Gorcch has recently come out as quite a

147
00:08:43,080 --> 00:08:46,559
Speaker 1: vocal critic of that of that doctrine. But in terms

148
00:08:46,600 --> 00:08:50,880
Speaker 1: of overall judicial philosophy, originalism, textualism, in terms of their

149
00:08:51,400 --> 00:08:55,080
Speaker 1: you know, really sparkling writing ability and style, UM, I

150
00:08:55,080 --> 00:08:57,120
Speaker 1: think they really do share a lot more similarities than not.

151
00:08:59,160 --> 00:09:02,520
Speaker 1: I want to thank our guests Jane Nitze, who clerked

152
00:09:02,520 --> 00:09:04,760
Speaker 1: for Judge Gorcych and then later for Sonya so to

153
00:09:04,800 --> 00:09:08,440
Speaker 1: Mayor on the Supreme Court. She's now at Harvard Law School.

154
00:09:08,480 --> 00:09:11,160
Speaker 1: And Eric Citron of the law firm Goldstein and Russell,

155
00:09:11,200 --> 00:09:13,760
Speaker 1: he too clerked on the Supreme Court. Thanks for sharing

156
00:09:13,760 --> 00:09:19,480
Speaker 1: your thoughts on Neil Gorcich, who is reportedly the front

157
00:09:19,520 --> 00:09:22,080
Speaker 1: rudder at least a front rudder for the vacant Supreme

158
00:09:22,080 --> 00:09:24,400
Speaker 1: Court nomination. Vacant Supreme Court seat