Speaker 1: You're listening the Bloomberg Law with Jim Grasso, New York
Speaker 1: and Gregg's Store here in our Washington studios. Moments ago,
Speaker 1: President Donald Trump said he is on the verge of
Speaker 1: nominating somebody to fill the year old vacancy on the
Speaker 1: Supreme Court. We have outstanding candidates, and pop will pick
Speaker 1: a truly great Supreme Court justice. But I'll be announcing
Speaker 1: it sometime next week. And a new name has gained
Speaker 1: prominence in recent days. It's Neil Gorsch, a judge on
Speaker 1: the tenth US Circuit Court of Appeals in Denver. Both
Speaker 1: ABC and CBS say he is now the front runner
Speaker 1: for the nomination. The forty nine year old Gorstch comes
Speaker 1: with sparkling credentials, including degrees from Harvard Law School, graduating
Speaker 1: the same year as Barack Obama, and the University of Oxford.
Speaker 1: His appeals court nomination by George W. Bush sailed through
Speaker 1: the Senate in twenty six and over the past decade
Speaker 1: he has assembled a solid conservative record. What would Neil
Speaker 1: Gorsuch mean for the Supreme Court? We have two guests
Speaker 1: to help us figure that out. Jane Knitze, clerk for
Speaker 1: Gorsch on the tense circuit in twenty nine. She's now
Speaker 1: a fellow and lecturer at Harvard Law School. And Eric
Speaker 1: Citron of the law firm Goldstein and Russell he looked
Speaker 1: into Gorstage's tense circuit record for the website's go to blog,
Speaker 1: Welcome to you both, Jane. Let me start with you,
Speaker 1: since you clerk for him, just answer a basic question,
Speaker 1: what is Neil Gorstage like? Sure, well, that's an easy question. So,
Speaker 1: having clerked for him, and you know we stay in
Speaker 1: touch over the years, I can say, first and foremost,
Speaker 1: just taking off from our obvious points, he is an
Speaker 1: absolutely brilliant jurist. Uh. Eric made that point his blog post,
Speaker 1: and I think that everyone can agree that he's exceptionally qualified. Um. Also,
Speaker 1: you know, what we see, what I saw a front
Speaker 1: um when I clerked for him, is that he's an
Speaker 1: incredibly good writer. He takes a great amount of care
Speaker 1: in crafting his judicial opinions, and so it was it
Speaker 1: was not unusual for us to go back and forth
Speaker 1: on draft, you know, ten twenty thirty four times, I
Speaker 1: think one draft in our resource sevent d drafts by
Speaker 1: the end, and he takes really a great deal of
Speaker 1: care and crafting, you know, his his opinions, and I
Speaker 1: think that he uh, he now is widely regarded as
Speaker 1: one of the most talented writers on the bench today.
Speaker 1: And with with you know, with good reason, go ahead,
Speaker 1: go ahead, Jane, Oh, I'm sorry. Uh. I also would
Speaker 1: say that, you know, he's an incredibly fair, fair judge.
Speaker 1: What matters to him is not at all his personal
Speaker 1: policy preferences. Those were never discussed in chambers. Um. The
Speaker 1: only thing that mattered to him was what the law said,
Speaker 1: what the Constitution said, and that's how deside the case
Speaker 1: and what the president was. Of course, So Eric, you
Speaker 1: wrote about him and you compared him in many respects
Speaker 1: to Justice Antonin Scalia tell us, Yeah, sure, I mean
Speaker 1: I think I can't take credit for the comparison. That's
Speaker 1: one that's uh, that's become pretty common. Uh, and I
Speaker 1: think he's even spoken about it himself. Um, but you know,
Speaker 1: Justice Scalia's judicial philosophy and Judge gorsuch As judicial philosophy,
Speaker 1: I think, uh, interact um very closely, or have a
Speaker 1: lot of strong parallels. I think that that's clearest on
Speaker 1: issues of textualism, that is, you know, we should try
Speaker 1: to read both the Constitution and statutes to mean pretty
Speaker 1: much what they say in the plain English kind of
Speaker 1: way and not in graphed A lot of judge made
Speaker 1: ideas onto either the laws or the constitution. Uh, and
Speaker 1: that results, I think in a pretty limited view of
Speaker 1: the judiciary, and it's appropriate ken and um, you know,
Speaker 1: I also think that Judge Gorsechu comes across as somebody
Speaker 1: who cares a lot about uh you know, what I
Speaker 1: would call an objective view of the law. I think
Speaker 1: he thinks, you know, there are right answers if you
Speaker 1: just think about it hard enough, pay attention to the arguments,
Speaker 1: pay attention to the precedents, you will know how the
Speaker 1: case ought to come out. And um, you know that
Speaker 1: that ideally everybody ought to be able to agree about it.
Speaker 1: I'm not sure if that's a position that makes him
Speaker 1: moderate or not. You know, I think Justice Scalia believe
Speaker 1: that and managed to vote on the right side of
Speaker 1: the court with great consistency. But I do think it's
Speaker 1: somebody who he doesn't strike you as someone who, um
Speaker 1: doesn't take the side the arguments of the other side
Speaker 1: seriously or the like. He's like Jane said, he comes
Speaker 1: across an exceedingly fair minded judge Jane. Of course, being
Speaker 1: an appeals court judge is different from being a Supreme
Speaker 1: Court justice. But given that, uh, is judge Gorst's somebody
Speaker 1: who tends to want to push the law in a
Speaker 1: particular direction, or is he somebody who is more inclined
Speaker 1: to rule narrowly in a given case? Well, I think
Speaker 1: to the point you just raised in your question, one
Speaker 1: thing to remember is that the job or court judge
Speaker 1: is really to follow in particular source of Supreme Court
Speaker 1: precedent if it exists, And certainly in chambers, he always
Speaker 1: wanted to know what the Supreme Court has said, and
Speaker 1: he wanted to follow it. Um. That said, he wasn't
Speaker 1: afraid to criticize um precedent where warrn did Um And
Speaker 1: quite the contrary. In the administry of law arena, he
Speaker 1: has been a sort of vocal critic of the Chevron
Speaker 1: deference doctrines. Um. But it's hard to say, I mean
Speaker 1: just speaking generally through a narrow or abroad I mean,
Speaker 1: he really just approaches the case. He looks at the
Speaker 1: constitution if that issue, he looks the law, and he
Speaker 1: decides the case corn to what the constitutional law dictates. Eric,
Speaker 1: he has not written about Roe v. Wade. I understand
Speaker 1: from his views on religion. Can we figure out what
Speaker 1: he would think about Roe v. Wade? Is he like
Speaker 1: Schooly in that way? I mean, to be perfectly honest,
Speaker 1: I would have no comfort making predictions are talking about
Speaker 1: that um, not for political reasons, but because I literally
Speaker 1: have no idea. UM. I will say that the limited um,
Speaker 1: you know, the sort of judicial minimalism attitudes that come
Speaker 1: across from his opinions and his attitudes about unwritten aspects
Speaker 1: of the Constitution, would suggest that he's not going to
Speaker 1: be a particularly strong vote for something like the right
Speaker 1: to privacy that underlies growing in Swade, because you can't
Speaker 1: find it in the text of the Constitution. That said,
Speaker 1: you know, when people reach the court, they can have
Speaker 1: very different views about things the Court has already decided
Speaker 1: and how much respect they want to accord to their colleagues,
Speaker 1: on issues that have been percolating for those judges for
Speaker 1: several years and on which you haven't yet have the
Speaker 1: chance to think as a Supreme Court justice rather than
Speaker 1: a lower court judge. Uh. And so it's it's just
Speaker 1: very very hard to predict how once he gets there
Speaker 1: he'll be thinking about questions like that one. It just
Speaker 1: isn't something he's touched on. I will say, also, you know,
Speaker 1: the religion cases that Judge of course has been involved
Speaker 1: in have a lot more to do with questions of
Speaker 1: pluralism than they do with questions than like expressing a
Speaker 1: pro religious view as such, or like voting as a
Speaker 1: religious person or anything like that. I think Judge or
Speaker 1: definitely has a view, like Justice Scalias and other folks
Speaker 1: on the Court that we're just not tolerant enough of
Speaker 1: expressions of religiosity and public which are not really intended
Speaker 1: to make people of other religions feel like they don't
Speaker 1: belong or anything like that. I don't think that necessarily
Speaker 1: translates to a view one way or another about things
Speaker 1: like row being We only have about a minute left,
Speaker 1: but but just tell me, is you look at Justice
Speaker 1: Scalia and what he represented, and you look at Judge Gorcich,
Speaker 1: where would you see the biggest areas, if any of
Speaker 1: of significant differences between the former and the latter. So
Speaker 1: I think the similarities far away the differences, to be
Speaker 1: perfectly honest, on the substance, I think Eric and his
Speaker 1: blog post pointed out the one area where there is
Speaker 1: some difference, which is the administrative law area. Um. The
Speaker 1: Justice uh Scolia was a proponent of Chevron difference doctrine,
Speaker 1: which means differring to that just means deferring to the
Speaker 1: agency's interpretation of a statute right exactly exactly. Thank you, UM.
Speaker 1: And Judge Gorcch has recently come out as quite a
Speaker 1: vocal critic of that of that doctrine. But in terms
Speaker 1: of overall judicial philosophy, originalism, textualism, in terms of their
Speaker 1: you know, really sparkling writing ability and style, UM, I
Speaker 1: think they really do share a lot more similarities than not.
Speaker 1: I want to thank our guests Jane Nitze, who clerked
Speaker 1: for Judge Gorcych and then later for Sonya so to
Speaker 1: Mayor on the Supreme Court. She's now at Harvard Law School.
Speaker 1: And Eric Citron of the law firm Goldstein and Russell,
Speaker 1: he too clerked on the Supreme Court. Thanks for sharing
Speaker 1: your thoughts on Neil Gorcich, who is reportedly the front
Speaker 1: rudder at least a front rudder for the vacant Supreme
Speaker 1: Court nomination. Vacant Supreme Court seat