MORE POSSIBILITIES
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.”