MORE POS­SI­BIL­I­TIES

The Denver Post - - DENVER & THE WEST - By Kevin Simp­son Kevin Simp­son: 303-954-1739, ksimp­son@den­ver­post.com or @ksimp­sondp

U.S. Court of Ap­peals for the 10th Cir­cuit has two Colorado can­di­dates un­der con­sid­er­a­tion by Pres­i­dent-elect Don­ald Trump: Tim Tymkovich and Neil Gor­such.

The first clerk Tim Tymkovich hired af­ter he made the fed­eral bench re­calls that his new boss not only sought can­di­dates from his home state’s law schools, rather than de­fault to the Ivy League, but also looked for unique char­ac­ter­is­tics so he could sur­round him­self with in­ter­est­ing peo­ple.

“He men­tioned to me once that it stood out on my re­sume that I like to make home­made wine,” said Dan Domenico, now a lawyer in pri­vate prac­tice. “That led to us talk­ing about our fam­ily his­to­ries in north Den­ver. That per­sonal con­nec­tion is im­por­tant to him. He showed that he can be a good judge and a good per­son at the same time.

“If that were to show up on the Supreme Court, I think the coun­try would ben­e­fit.”

Tymkovich, cur­rently the chief judge for the U.S. Court of Ap­peals for the 10th Cir­cuit, made Pres­i­dent-elect Don­ald Trump’s list of 21 can­di­dates for the cur­rent va­cancy on the court. At 60, he comes with the req­ui­site con­ser­va­tive cre­den­tials and vir­tu­ally undi­luted Colorado roots.

“He’s a third-gen­er­a­tion Colorado na­tive who is a Westerner through and through,” said former Colorado Supreme Court Jus­tice Re­becca Love Kourlis, founder of the re­form-minded In­sti­tute for the Ad­vance­ment of the Amer­i­can Le­gal Sys­tem at the Univer­sity of Den­ver. “He’s spent his life, ed­u­ca­tion and pro­fes­sional ca­reer in Colorado, and un­der­stands is­sues that im­pact the West — that’s a per­spec­tive not cur­rently rep­re­sented on the U.S. Supreme Court.”

He com­pleted his un­der­grad­u­ate work in po­lit­i­cal sci­ence at Colorado Col­lege and moved on to the Univer­sity of Colorado School of Law, where he edited the law re­view, be­fore clerk­ing with Chief Jus­tice Wil­liam Erick­son of the Colorado Supreme Court.

Af­ter eight years in pri­vate prac­tice, in­clud­ing a stint in the Wash­ing­ton of­fice of the Den­ver firm Davis Gra­ham and Stubbs, he signed on as so­lic­i­tor gen­eral un­der state At­tor­ney Gen­eral Gale Nor­ton. That fiveyear run vaulted him into the pub­lic eye.

Tymkovich re­turned to pri­vate prac­tice as part­ner in a new firm un­til Ge­orge W. Bush nom­i­nated him for the Den­ver-based 10th Cir­cuit in 2003. He be­came the court’s chief judge last year.

Kourlis calls him thought­ful and pre­cise, with quick-to-the-point opin­ions, key roles in the gov­ern­ing body for fed­eral courts and a strong re­la­tion­ship with his law clerks that in­cludes an­nual ski trips where pow­der days are punc­tu­ated by an evening of board games. Tymkovich is de­scribed as an ex­cel­lent skier — another Colorado cre­den­tial — and he of­ten trav­els with his wife, at­tor­ney-turned-au­thor Suzanne Lyon, to soak up color for her West­ern historical nov­els.

Tymkovich de­clined an in­ter­view re­quest.

Trump’s short­list leans away from coastal elites, which David Lat of the le­gal web­site Above the Law fig­ures could weigh in Tymkovich’s fa­vor — even though Colorado tipped in fa­vor of Hil­lary Clin­ton in the pres­i­den­tial race.

Lat said that while Tymkovich falls at the older end of the can­di­date spec­trum and Repub­li­cans’ nom­i­nees have trended young, this col­lec­tion of names dif­fers from the norm. Some of them would have been on any­one’s list. “And then,” he said, “there are some sur­prises — Tymkovich be­ing a sur­prise.”

Tymkovich gained a high pub­lic pro­file dur­ing the court bat­tle over Colorado’s Amend­ment 2, the 1992 anti-gay-rights bal­lot mea­sure that passed eas­ily but even­tu­ally was chal­lenged all the way to the U.S. Supreme Court, where, in the case Romer vs. Evans, it was struck down.

As Colorado’s so­lic­i­tor gen­eral, Tymkovich was charged with de­fend­ing the law. His op­po­nent was former Colorado Supreme Court Jus­tice Jean Dubrof­sky, who over the course of the bat­tle be­came good friends with Tymkovich — the two of­ten were in­vited to speak to­gether to groups — and later even sup­ported his nom­i­na­tion to the 10th Cir­cuit.

But with key is­sues such as Roe vs. Wade and gay rights po­ten­tially hang­ing in the bal­ance, Dubrof­sky — while un­cer­tain where Tymkovich would come down on those is­sues — has reser­va­tions about the judge she de­scribes as “rock-solid con­ser­va­tive.”

“When I sup­ported him for the 10th Cir­cuit, he wasn’t go­ing to have the fi­nal say on any of those is­sues,” said Dubrof­sky, now re­tired. “The U.S. Supreme Court is much more po­lit­i­cal. I’m more hes­i­tant about sup­port­ing him. But I still think, given some peo­ple who might be ap­pointed, he’d prob­a­bly be more even-handed and open-minded than many of the oth­ers.”

For John Mal­colm, of the con­ser­va­tive Her­itage Foun­da­tion, the im­por­tant thing about Tymkovich and his role in the Amend­ment 2 bat­tle has noth­ing to do with ide­ol­ogy and ev­ery­thing to do with the way he dis­charged his du­ties.

“He did his job in an honor­able way as so­lic­i­tor gen­eral,” he said. “I look at that sort of ac­tion, set­ting aside the pol­i­tics, and say, ‘Does he be­lieve in up­hold­ing rule of law?’ He han­dled him­self with dis­tinc­tion. I look at peo­ple who stand up and do what’s right in the face of crit­i­cism.”

Among Tymkovich’s opin­ions at the fed­eral level, two that ob­servers of­ten men­tion are the so-called Hobby Lobby case and Stolen Valor. In Hobby Lobby, which ini­tially was Hobby Lobby Stores vs. Se­be­lius, Tymkovich wrote for a five-judge ma­jor­ity that found closely held pri­vate cor­po­ra­tions could claim re­li­gious free­dom in deny­ing health care op­tions — cer­tain con­tra­cep­tives, in this case — that vi­o­lated their be­liefs.

That de­ci­sion later was up­held on ap­peal at the U.S. Supreme Court by a 5-4 vote.

Tymkovich also wrote the 10th Cir­cuit’s opin­ion re­gard­ing the Stolen Valor Act, which was chal­lenged on First Amend­ment grounds by an in­di­vid­ual who had lied about re­ceiv­ing mil­i­tary hon­ors. The district court had found the law un­con­sti­tu­tional but Tymkovich’s opin­ion re­versed that find­ing and held that such know­ingly false state­ments are not protected by the First Amend­ment.

The U.S. Supreme Court later found the Stolen Valor Act un­con­sti­tu­tional by a 6-3 vote in another case, al­though some jus­tices agreed that such lies are not con­sti­tu­tion­ally protected.

“He took a con­tro­ver­sial but cor­rect de­ci­sion on Stolen Valor,” Mal­colm said, “and Hobby Lobby was some in­di­ca­tion of the im­por­tance he places on re­li­gious lib­erty.”

But Tymkovich’s Stolen Valor opin­ion, in par­tic­u­lar, con­cerns Univer­sity of Den­ver law pro­fes­sor Justin Marceau, who also lit­i­gates free speech cases. The stakes may seem small with re­gard to some­one ly­ing about mil­i­tary hon­ors, he said, but the ram­i­fi­ca­tions could be pro­found if such a crim­i­nal stan­dard were ap­plied to pol­i­tics or in­ves­tiga­tive re­port­ing.

“That’s a red flag that I have in his de­ci­sions, more so than Hobby Lobby,” Marceau said. “Our democ­racy can with­stand mis­steps, but if we put peo­ple in power who want to cur­tail speech, I’m very afraid. That’s the one thing I’d want to talk to him about: Where do you land on the pa­ram­e­ters of free speech?”

To Car­rie Sev­erino, chief coun­sel and pol­icy direc­tor for the con­ser­va­tive Ju­di­cial Cri­sis Net­work, it’s Hobby Lobby that stands out — not only for its re­cent high pro­file, but also for the way it re­veals the judge’s tex­tu­al­ist ap­proach.

“It re­ally is a fun­da­men­tal statu­tory in­ter­pre­ta­tion case,” Sev­erino said. “When there’s so many hot but­ton is­sues in­volved, it can be tempt­ing for judges to go off the script in terms of what the statute plainly re­quires. We want peo­ple who will in­ter­pret things as they were passed, re­gard­less of the po­lit­i­cal pres­sures on them at the mo­ment.”

Marceau al­lows that Tymkovich is rightlean­ing in terms of re­li­gious lib­erty “in ways that big parts of the coun­try would find dis­taste­ful.” He also notes that the judge’s in­nate per­sonal com­pas­sion could be chal­lenged by his strong be­lief in the power of states — at least when some states im­pede civil rights.

“He’s a real gi­ant among judges who want more def­er­ence to states, and that’s in ten­sion with a pro­gres­sive sense that there should be a fed­eral check on states, par­tic­u­larly rogue states,” Marceau said. “But Judge Tymkovich has the com­mon sense and for­ti­tude to rein in the true out­liers. I think he would be a con­ser­va­tive voice, to be sure, but one tem­pered by a bit more con­straint in terms of try­ing to bal­ance the var­i­ous val­ues in play.”

What­ever their views on his opin­ions, those fa­mil­iar with Tymkovich strongly agree on one point: His tem­per­a­ment and sheer col­le­gial­ity are off-the-charts pos­i­tive.

“He has what you’d de­scribe as ju­di­cial tem­per­a­ment,” said Domenico, who like his former boss also held the job of state so­lic­i­tor gen­eral be­fore mov­ing to pri­vate prac­tice. “Thought­ful and calm, doesn’t get dis­tracted eas­ily. Also a fun guy out­side the court­room and in­ter­ested in things be­yond read­ing books.

“I bet he’d miss spend­ing time here.”

Den­ver lawyer Tim Tymkovich was con­firmed as an ap­pel­late judge at the United States Court of Ap­peals for the 10th Cir­cuit in 2003.

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