Gor­such re­li­ably right, but in­tensely at­ten­tive

The Washington Post Sunday - - FRONT PAGE - BY KIM­BERLY KINDY, SARI HORWITZ AND WIL­LIAM WAN

den­ver — It was a hor­rific case. A fe­male stu­dent had been gan­graped by foot­ball play­ers be­ing re­cruited by the Univer­sity of Colorado. Now, her lawyers were try­ing to hold the univer­sity partly re­spon­si­ble, ar­gu­ing it had cre­ated a hos­tile en­vi­ron­ment for women.

A lower court had al­ready re­jected their civil rights ar­gu­ment. As her lawyers pre­pared to ap­peal in 2007, they had an over­ar­ch­ing con­cern: a fed­eral ap­pel­late judge named Neil Gor­such.

Newly ap­pointed to the bench by then-Pres­i­dent Ge­orge W. Bush, Gor­such was known as a fierce con­ser­va­tive whose writ­ings skew­ered his lib­eral ad­ver­saries. His fel­low con­ser­va­tive judges had shown lit­tle ap­petite in pre­vi­ous cases to hold in­sti­tu­tions, such as uni­ver­si­ties, re­spon­si­ble for the con­duct of in­di­vid­u­als.

“It was crush­ing news to learn Gor­such was on the panel,” said Baine Kerr, a lead at­tor­ney for the rape vic­tim in the case 10 years ago.

Kerr spent weeks pre­par­ing for Gor­such, stag­ing ex­ten­sive mock hear­ings to sim­u­late the ag­gres­sive in­ter­ro­ga­tion they ex­pected from him.

But on the day of the hear­ing when Kerr stepped up to the lectern, an­tic­i­pat­ing Gor­such to cut him off im­me­di­ately with ques­tions, the judge stayed silent in­stead, lis­ten­ing in­tently. Fif­teen min­utes into Kerr’s ar­gu­ment, a red light went off sig­nal­ing that Kerr’s time was up. Gor­such

“Peo­ple do un­ex­pected things. Pi­geon­holes ig­nore gray ar­eas in the law.” Neil Gor­such, at his con­fir­ma­tion hear­ing in 2006

“When you ex­pose, at an early age, chil­dren to ‘The McLaugh­lin Group,’ you see peo­ple de­bat­ing, us­ing their crit­i­cal rea­son­ing. You come to the re­al­iza­tion that there isn’t just one side or the other that is right. The truth is of­ten in the mid­dle.” Gor­such’s younger brother, J.J., talk­ing about their up­bring­ing. Their par­ents, who were both lawyers, en­cour­aged their chil­dren to de­bate and ex­am­ine all sides of an ar­gu­ment

waved Kerr on.

Over the next hour, Gor­such steered the con­ver­sa­tion with pointed com­ments — sym­pa­thetic for Kerr, barbed for the univer­sity’s lawyer.

Lawyers on both sides re­called later that they were dumb­founded.

The ap­peals court would go on to de­cide in fa­vor of the vic­tim, send­ing the case back to a lower court for trial. And the law­suit was ul­ti­mately set­tled with the univer­sity pay­ing her $2.5 mil­lion.

In the weeks since Pres­i­dent Trump nom­i­nated Gor­such to fill the Supreme Court va­cancy, de­bate over him has split along pre­dictably par­ti­san lines, with praise from the right and anx­ious con­dem­na­tion from the left.

But Gor­such him­self is per­haps not so pre­dictable. An ex­am­i­na­tion of his de­vel­op­ment from gifted Colorado school­boy to col­lege fire­brand and then staunchly con­ser­va­tive ju­rist re­veals that he is quite ca­pa­ble of sur­prise.

He grew up in a high-pro­file Repub­li­can fam­ily and be­came in­fa­mous in Columbia Univer­sity’s lib­eral cir­cles for pen­ning fierce at­tacks on cam­pus pro­test­ers. On the bench, he has sub­scribed to the same ju­di­cial phi­los­o­phy as the late An­tonin Scalia, a con­ser­va­tive icon whom Gor­such would re­place on the court. And Gor­such’s re­cent rul­ings — in­clud­ing a ma­jor de­ci­sion find­ing that com­pa­nies could deny em­ploy­ees gov­ern­ment-man­dated con­tra­cep­tive cover­age on re­li­gious grounds — have won him plau­dits from the right.

But Gor­such has also es­tab­lished deep and en­dur­ing re­la­tion­ships with lib­er­als he has known since his school days — in some cases the very tar­gets of his pointed at­tacks. He has won en­dorse­ments from gay friends and hired law clerks from the op­po­site end of the po­lit­i­cal spec­trum. He has ar­gued that the court sys­tem short­changes low-in­come peo­ple and called for mak­ing le­gal ser­vices cheaper and courts more ac­ces­si­ble. Even the sim­ple writ­ing style of his opin­ions, which have won wide at­ten­tion in le­gal cir­cles, re­flects his con­vic­tion that the law should be un­der­stand­able to every­one, lest it fa­vor only the wealthy and well ed­u­cated.

In his writ­ings, he has de­nounced lib­er­als for us­ing court de­ci­sions to ad­vance “their so­cial agenda.”

But Gor­such has also re­fused to be pi­geon­holed him­self, say­ing, “Peo­ple do un­ex­pected things. Pi­geon­holes ig­nore gray ar­eas in the law.”

Gor­such’s par­ents, Anne and David, were lawyers, and they raised their three chil­dren on the art of ver­bal spar­ring.

The im­promptu de­bates could hap­pen at any time — over din­ner in their home in Den­ver, lis­ten­ing to NPR on the way to school, or while watch­ing the Sun­day morn­ing po­lit­i­cal talk shows. Gor­such’s younger brother, J.J., said their par­ents would press them to see dif­fer­ent sides of the story, to gain em­pa­thy for op­po­nents and re­fine their own ar­gu­ments.

“When you ex­pose, at an early age, chil­dren to the McLaugh­lin Group, you see peo­ple de­bat­ing, us­ing their crit­i­cal rea­son­ing,” Gor­such’s brother said. “You come to the re­al­iza­tion that there isn’t just one side or the other that is right. The truth is of­ten in the mid­dle.”

In grade school, Gor­such stood out be­cause of this skill at quickly tak­ing po­si­tions and back­ing them up.

“Other kids were not able to do this,” said class­mate Gina Car­bone, whose mother shared car­pool­ing du­ties with Gor­such’s mother. “He was def­i­nitely more ma­ture than the rest of us, bet­ter in­formed and more ad­vanced.”

An­other class­mate, Rob Ten­gler said, “He wouldn’t of­fer his opin­ion un­less he was asked, but then he al­ways had a whole lot more to say than the rest of us.”

At the small pri­vate school Gor­such at­tended, Christ the King Ro­man Catholic School teach­ers drilled into their stu­dents the val­ues of char­ac­ter, duty and ser­vice. While many stu­dents brushed off the moral lessons, Gor­such seemed to in­ter­nal­ize them.

Jonathan Brody, one of his clos­est child­hood friends, said one in­ci­dent in par­tic­u­lar has stayed with him. When they were about 12 years old, Gor­such bor­rowed a sleep­ing bag, and it got dam­aged or dirty in his care. He grew dis­traught.

“He was very con­cerned and up­set that his honor and his in­tegrity would be ques­tioned,” re­counted Brody, who is now a state dis­trict court judge in Idaho. “I re­mem­ber think­ing, ‘Maybe I’m missing some­thing. Do I not take this sort of thing se­ri­ously enough? Maybe I should.’ ”

Dur­ing grade school, Gor­such saw his fam­ily’s po­lit­i­cal in­volve­ment grow af­ter lo­cal Repub­li­cans vis­ited their home to re­cruit his fa­ther as a can­di­date. “You have the wrong Gor­such,” his mother told them. Soon, at age 9, he was go­ing door to door with his mother as she suc­cess­fully cam­paigned for the Colorado state leg­is­la­ture. Sud­denly, fam­ily de­bates over politics were no longer ab­stract.

Anne Gor­such was a strik­ing politi­cian with jet-black hair and per­fect man­i­cures. She wore fur coats and smoked two packs of Marl­boros a day — and rarely, if ever, shied away from po­lit­i­cal com­bat. The Rocky Moun­tain News de­scribed her this way: “She could kick a bear to death with her bare feet.” She quickly earned the honor of “Out­stand­ing Fresh­man Leg­is­la­tor” from her col­leagues and the capi­tol press corps.

Her con­ser­va­tive politics put her in a group of state law­mak­ers dubbed the “House Cra­zies” by crit­ics be­cause of their de­ter­mi­na­tion to kill en­vi­ron­men­tal bills, dra­mat­i­cally down­size gov­ern­ment and ad­vo­cate for states’ rights. Her ef­forts brought her to the at­ten­tion of the newly elected pres­i­dent, Ron­ald Rea­gan. In 1981, he ap­pointed her the first fe­male ad­min­is­tra­tor of the En­vi­ron­men­tal Pro­tec­tion Agency.

With her mar­riage al­ready head­ing to­ward di­vorce, she left her hus­band in Colorado, packed up the kids and moved to Wash­ing­ton, D.C.

She en­rolled Gor­such, a teenager at the time, in a board­ing school. At Ge­orge­town Prepara­tory School in Rockville, he swapped the polo shirt, khakis and cow­boy boots he wore in Colorado for the school-man­dated jacket, tie and dress shoes. Those fre­quent din­ner­time de­bates with his fam­ily were re­placed with din­ing hall meals taken with fel­low dor­mi­tory board­ers.

“It was a lit­tle lonely,” said Michael Trent, who re­lo­cated from Cal­i­for­nia af­ter Rea­gan named his fa­ther as deputy transportation sec­re­tary. “We spent a lot of time talk­ing about how dif­fer­ent our lives had be­come and what our par­ents were do­ing.” Trent would be­come one of Gor­such’s clos­est friends, later serv­ing as best man at his wed­ding. “We be­came soul mates be­cause we un­der­stood what the other was go­ing through.”

Gor­such’s con­ser­va­tive val­ues brought him to the cen­ter of po­lit­i­cal de­bates at the high school. He was known as an es­pe­cially fierce cham­pion of Rea­gan and the Repub­li­can agenda. An en­try in Gor­such’s high school year­book listed him as founder of the “Fas­cism For­ever Club.”

Stephen J. Ochs, who was fac­ulty ad­viser to the stu­dent gov­ern­ment, said the fas­cism club was a fab­ri­ca­tion, merely an ex­ten­sion of the play­ful goad­ing be­tween con­ser­va­tive and lib­eral stu­dents on the de­bate team.

“They would use hy­per­bole,” Ochs said. “‘You’re such a con­ser­va­tive fas­cist! and ‘You lefty rad­i­cals!’ . . . It was good-na­tured. This was a ref­er­ence to that. An in­sider joke.”

As the new head of EPA, Anne Gor­such wasted no time act­ing on her ideas for slash­ing big gov­ern­ment and re­duc­ing reg­u­la­tions.

To the howls of en­vi­ron­men­tal groups and Democrats, she cut the agency’s bud­get by 22 per­cent, dra­mat­i­cally de­creased cases and ac­tions against pol­luters, re­laxed Clean Air Act reg­u­la­tions and started hir­ing staff from the in­dus­tries the EPA was sup­posed to reg­u­late. She en­gen­dered so much hos­til­ity within her own agency that a Doones­bury comic strip de­picted an EPA em­ployee on a ledge threat­en­ing to jump.

The con­fronta­tion over her stew­ard­ship of the EPA es­ca­lated when Congress launched an in­ves­ti­ga­tion into her agency’s mis­han­dling of the $1.6 bil­lion toxic waste Su­per­fund pro­gram. Law­mak­ers de­manded she turn over records, which she re­fused to do, cit­ing ex­ec­u­tive priv­i­lege. As a re­sult, she be­came the first agency di­rec­tor in U.S. his­tory to be cited for con­tempt of Congress.

Just 22 months into her ten­ure, Anne Gor­such re­signed.

It was her son’s sopho­more year at Ge­orge­town Prep, and all his school­mates knew what was hap­pen­ing.

“I re­mem­ber ask­ing Neil, ‘How’s your mom do­ing?’ He smiled and said, ‘She’s do­ing fine, thank you,’” said Thad Fi­carra, a fel­low boarder. “It wasn’t a brushoff. I said, ‘Just so you know, your mom is in my prayers.’ He said, ‘I re­ally ap­pre­ci­ate that.’ . . . He was grate­ful for the sup­port, but he didn’t wal­low in it.”

What­ever Gor­such sup­pressed at school, he ex­pressed at home.

In her mem­oir “Are You Tough Enough?,” his mother wrote about how up­set the episode had made her son. “Half-way through Ge­orge­town Prep, and smart as a whip, Neil knew from the be­gin­ning the se­ri­ous­ness of my prob­lems.”

She re­called him say­ing, “You should never have re­signed. You didn’t do any­thing wrong. You only did what the Pres­i­dent or­dered. Why are you quit­ting? You raised me not to be a quit­ter. Why are you a quit­ter?”

But the trau­matic ex­pe­ri­ence didn’t de­rail Gor­such. He be­came a na­tional cham­pion in de­bat­ing. And it didn’t sour him on politics. It made him shrewder and more de­ter­mined.

At the end of his ju­nior year, he set his sights on be­com­ing stu­dent body pres­i­dent. Gor­such picked a run­ning mate who could de­liver the jock vote and as­sem­bled a team of 10 stu­dents to turn up at his speeches and de­bates and ap­plaud him on cue, ac­cord­ing to his run­ning mate John Cald­well. “He was in­cred­i­bly strate­gic.”

In 1985, when Gor­such ar­rived at Columbia Univer­sity in New York, the cam­pus was a hot­bed of lib­eral ac­tivism and protest.

It didn’t take long for him to turn his jour­nal­is­tic ire on the tar­gets all around him. In one col­umn for the stu­dent news­pa­per the Spec­ta­tor, Gor­such mocked the “mud­dled think­ing” of pro­test­ers who seemed to “have a mo­nop­oly on right­eous­ness.” In an­other news story, he crit­i­cized their ef­forts to block the evic­tion of a ten­ant from an apart­ment owned by Columbia, dis­miss­ing the pro­test­ers as pub­lic­ity hounds.

As a fresh­man, he and three other stu­dents es­tab­lished a con­ser­va­tive news­pa­per, the Fed, named in honor of Fed­er­al­ist Pa­per au­thors and Columbia alumni Alexan­der Hamil­ton and John Jay. In the first is­sue, Gor­such and his co-founders ex­plained their mis­sion: “Our voice will be an ag­gres­sive but con­sid­ered one, one that may make you think or may just make you an­gry. But it will be heard, and it will not be shouted down.”

Gor­such also pro­moted his con­ser­va­tive ideas by run­ning for Columbia’s stu­dent se­nate.

That year, the stu­dent news­pa­per asked ev­ery can­di­date whether the U.S. Marine Corps should be al­lowed to re­cruit on cam­pus. While most can­di­dates brought up the mil­i­tary’s dis­crim­i­na­tion against gays as a prob­lem, Gor­such cited the Marine re­cruiters’ First Amend­ment right to free speech.

“The ques­tion here is not whether ‘the Marines should be al­lowed to re­cruit on cam­pus’ but whether a Univer­sity and its com­mu­nity . . . has the right or obli­ga­tion to de­ter­mine who may speak on cam­pus or what may be said,” Gor­such wrote.

At Columbia, and in the years that fol­lowed at Har­vard Law School and Ox­ford Univer­sity, Gor­such en­joyed en­gag­ing on the hot-but­ton is­sues of the day.

One is­sue in par­tic­u­lar be­came a kind of lab­o­ra­tory for his con­ser­va­tive ex­plo­rations: the sanc­tity of life and how to de­fine it. At the time, Michi­gan doc­tor Jack Kevorkian was mak­ing na­tional head­lines by cham­pi­oning the right to die for ter­mi­nal pa­tients through physi­cian-as­sisted sui­cide. This and sim­i­lar con­tro­ver­sies made a deep im­pres­sion on Gor­such. He was ea­ger to de­bate as­sisted sui­cide with fel­low law stu­dents at Har­vard, and it be­came the sub­ject of his PhD the­sis af­ter he won a Mar­shall Schol­ar­ship to Ox­ford.

In his dis­ser­ta­tion, later pub­lished as a book en­ti­tled, “The Fu­ture of As­sisted Sui­cide and Eu­thana­sia,” he makes his le­gal case against as­sisted sui­cide and ar­gues for the “in­vi­o­la­bil­ity” of hu­man life.

It is the clos­est Gor­such has ever come to re­veal­ing his thoughts on abor­tion, in his aca­demic writ­ings as well as in his ju­di­cial opin­ions. But with abor­tion con­tin­u­ing to be one of the mar­quee is­sues con­fronting the Supreme Court, the book has been cited by Gor­such’s con­ser­va­tive back­ers as rea­son to rally be­hind him, and by abor­tion rights ad­vo­cates as the ba­sis of their worst fears.

Many of those who knew Gor­such dur­ing his stu­dent days noted that he was as af­fa­ble in per­son as he was fierce in his writ­ings.

As a mem­ber of a Har­vard so­cial club called Lin­coln’s Inn So­ci­ety, Gor­such met a class­mate named Phil Berg, spark­ing a friend­ship that has lasted 30 years.

A few years af­ter they met, Berg de­cided to come out as gay, and Gor­such was one of the first friends he told.

“It was a time that was very fraught and dif­fi­cult for me,” Berg said, re­call­ing his con­ver­sa­tion with Gor­such at a din­ner gath­er­ing in the early 1990s. “He — in a very sin­cere way, with­out skip­ping a beat — was sup­port­ive and has been since then . . . . I re­mem­ber how much of a re­lief it was that it was not an is­sue.”

When Berg and his boyfriend, Ron­ald Ri­queros, got mar­ried in 2012, Gor­such sent them a note telling them to con­sider his house their house if they are ever in Colorado.

Berg said Gor­such was con­stantly estab­lish­ing such con­nec­tions with oth­ers, re­gard­less of their po­lit­i­cal phi­los­o­phy.

“He would have a real con­ver­sa­tion with peo­ple from the top pro­fes­sors to wait­ers and wait­resses at a restau­rant. He sort of put him­self in their shoes,” he said. “He made you feel like you were the only per­son in the room when he was talk­ing to you.”

Class­mates and ac­quain­tances — from his time in col­lege, law school and Ox­ford — uni­formly de­scribe him in such ef­fu­sive terms.

“There are a whole lot of peo­ple at Har­vard Law School who are

“Not every­one likes the con­fronta­tion that comes with lit­i­ga­tion. Some peo­ple used to win­ning their whole lives don’t like the risk of los­ing. You could tell it made him un­com­fort­able. He pushed him­self.” Mark Hansen, a part­ner and men­tor to Gor­such at a bou­tique Wash­ing­ton law firm, on Gor­such’s in­ter­est in pur­su­ing lit­i­ga­tion

in­ter­ested in talk­ing and want you to think that they’re the most im­por­tant per­son in the room,” said Ken Mehlman, his Har­vard house­mate who later be­came chair­man of the Repub­li­can Na­tional Com­mit­tee. “But Neil was very cu­ri­ous about other peo­ple and learn­ing what they had to say.”

Mehlman, like Berg, would later come out to Gor­such as gay and also re­called the sen­si­tive way he took the news.

“I would be sur­prised if any of our class­mates had an un­kind word to say about him,” said Norm Eisen, a class­mate who would later be­come a high-rank­ing of­fi­cial in the Obama ad­min­is­tra­tion.

Gor­such re­turned in 1995 from Ox­ford with sev­eral sur­prises in store. While in Eng­land, he met his fu­ture wife, Louise, a cham­pion eques­trian on the Ox­ford rid­ing team. A year and a half af­ter their first date, they were mar­ried.

“I laughed,” said David Jar­den, a col­lege friend. “Neil went off to Ox­ford to get a PhD in law. You think of Ox­ford as the long, black gowns and the an­cient build­ings. But, he came back with a wife and a horse.”

Gor­such clerked with Supreme Court Jus­tices By­ron White and An­thony M. Kennedy. With his im­pres­sive cre­den­tials, Gor­such de­cided against the pre­dictable route of join­ing a pres­ti­gious law firm and in­stead opted for the ex­cite­ment of a le­gal start-up. He signed on with the bou­tique Wash­ing­ton firm of Kel­logg, Hu­ber, Hansen & Todd. The twoyear-old firm was so new and small that a year ear­lier, when a client had re­quested a meet­ing at their of­fices, one of the part­ners ran out to buy fur­ni­ture, re­turn­ing with a mis­matched din­ing set to serve as the con­fer­ence ta­ble.

Once on board, Gor­such had to de­cide ex­actly what kind of lawyer he wanted to be. He could fo­cus on ap­pel­late law, fun­nel­ing his en­ergy into writ­ing le­gal briefs, or go the aca­demic route and coun­sel clients on pol­icy mat­ters. But Gor­such chose in­stead to ap­pren­tice un­der one of the part­ners, Mark Hansen, a trial lawyer who spent his days in the court­room cru­cible of lit­i­ga­tion.

“It was a risk for some­one like Neil, from the es­tab­lish­ment life, who wasn’t nec­es­sar­ily a swash­buck­ler. He looked like he had never walked against a Don’t Walk sign,” said Hansen. “Not every­one likes the con­fronta­tion that comes with lit­i­ga­tion. Some peo­ple used to win­ning their whole lives don’t like the risk of los­ing. You could tell it made him un­com­fort­able. He pushed him­self.”

The same em­pa­thetic, af­fa­ble man­ner that had en­deared Gor­such to lib­eral class­mates de­spite his fire­brand con­ser­vatism now helped him put clients at ease. His plain, Mid­west­ern way of talk­ing came across to ju­ries as down-toearth.

In his first case as a lead at­tor­ney, Gor­such rep­re­sented a prop­erty owner su­ing a con­struc­tion com­pany for steal­ing gravel, Hansen re­called.

“It’s not com­pli­cated. Here’s what they did to my poor client,” Gor­such told the jury in clos­ing

Aar­gu­ments. He reached into his pants pock­ets and turned them inside out. “They picked his pocket.”

A jury mem­ber ran up to Gor­such af­ter the trial, Hansen said, and com­pared him to Perry Ma­son.

For a decade he worked un­der and with Hansen. Then, over beers one evening af­ter an es­pe­cially tough day in court, he told Hansen that he wanted to ac­cept an of­fer to work in Bush’s Jus­tice Depart­ment. “At the time, I thought he would do it for a cou­ple of years and come back,” Hansen said.

But af­ter just a year and half, Bush tapped Gor­such to be­come a fed­eral ap­pel­late court judge. s a judge on the U.S. Court of Ap­peals for the 10th Cir­cuit based in Den­ver, Gor­such has won a fol­low­ing in le­gal cir­cles for his clear, of­ten en­ter­tain­ing style of writ­ing opin­ions.

Gor­such’s sig­na­ture move is to open his opin­ions with yarn-spin­ning sum­maries of the case that draw the reader in.

“If a seventh grader starts trad­ing fake burps for laughs in gym class, what’s a teacher to do? Or­der ex­tra laps? De­ten­tion? A trip to the prin­ci­pal’s of­fice?” he be­gan one de­ci­sion about a 13-year-old who was ar­rested. “Maybe. But then again, maybe that’s too old school. Maybe to­day you call a po­lice of­fi­cer.”

He be­gan an­other opin­ion about an in­sur­ance dis­pute with this: “Haunted houses may be full of ghosts, gob­lins, and guil­lotines, but it’s their more pro­saic fea­tures that pose the real dan­ger.”

A few years into his ten­ure, Gor­such started us­ing con­trac­tions, like “would’ve” and “could’ve.” His clerks teased him it, try­ing to find prece­dents for such in­for­mal lan­guage.

For­mer clerks say that Gor­such’s in­sis­tence on clear writ­ing re­flects his con­vic­tions about mak­ing the law ac­ces­si­ble and un­der­stand­able to every­one.

He has hired clerks from both lib­eral and con­ser­va­tive back­grounds, and last week, all of them — ex­cept two cur­rently clerk­ing at the Supreme Court — signed a bi­par­ti­san let­ter prais­ing his in­de­pen­dence.

In speeches, Gor­such has crit­i­cized the com­plex­ity of the Amer­i­can le­gal code, ar­gu­ing that there are so many crim­i­nal laws and they are so com­pli­cated that it can be hard for peo­ple to un­der­stand what is and isn’t a crime. In an ar­ti­cle ti­tled “Ac­cess to Af­ford­able Jus­tice” pub­lished by the Duke Law Cen­ter, he called on bar as­so­ci­a­tions and ed­u­ca­tors to make le­gal ser­vices cheaper and courts more ac­ces­si­ble to low-in­come lit­i­gants by ced­ing more work to non-lawyers with le­gal train­ing.

In 2007, af­ter sit­ting on a panel in which he be­lieved a pris­oner’s lawyer had missed ar­gu­ments crit­i­cal to his clients, Gor­such helped launch an ef­fort to im­prove the rep­re­sen­ta­tion of low­in­come pris­on­ers in death penalty cases. He and an­other judge trav­eled to Ok­la­homa, where many death penalty cases were aris­ing, to per­suade lawyers with good track records to take such cases and con­vened a tu­to­rial on how such cases should be pre­sented be­fore an ap­pel­late court.

In the weeks since Gor­such was nom­i­nated for the Supreme Court, his ju­di­cial phi­los­o­phy has been widely com­pared to Scalia’s.

Like Scalia, Gor­such is a proabout po­nent of orig­i­nal­ism — a be­lief that judges should try to in­ter­pret the Con­sti­tu­tion’s words as they were un­der­stood by its au­thors. But more im­por­tantly when it comes to laws, Gor­such, like Scalia, is a tex­tu­al­ist, who be­lieves that only the ac­tual words writ­ten in a statute mat­ter — not leg­is­la­tors’ in­tent or any po­ten­tial con­se­quences of a judge’s de­ci­sions.

Gor­such spelled out his phi­los­o­phy in his col­or­ful con­clu­sion on the case of the 13-year-old fake burper.

“Of­ten enough the law can be ‘a ass — a id­iot,’ ” he wrote, quot­ing Charles Dick­ens. “And there is lit­tle we judges can do about it, for it is (or should be) em­phat­i­cally our job to ap­ply, not re­write, the law en­acted by the peo­ple’s rep­re­sen­ta­tives. In­deed, a judge who likes ev­ery re­sult he reaches is very likely a bad judge, reach­ing for re­sults he prefers rather than those the law com­pels.”

That ap­proach has drawn its share of de­trac­tors, es­pe­cially among lib­er­als.

“The ar­gu­ment of orig­i­nal­ists like Gor­such is al­ways ‘Well, I’m just fol­low­ing the law.’ But it’s in­tel­lec­tu­ally dis­hon­est to pre­tend you can some­how di­vine the orig­i­nal founders’ in­tent,” said Aye­sha Khan, a for­mer long­time le­gal di­rec­tor for Amer­i­cans United for Sep­a­ra­tion of Church and State who has writ­ten many am­i­cus briefs in cases ruled on by Gor­such.

“It’s also a no­table co­in­ci­dence that the orig­i­nal­ist, tex­tu­al­ist phi­los­o­phy al­ways paves the way for re­li­gious mes­sages by gov­ern­ment or strikes down ef­forts to pro­tect women’s re­pro­duc­tive rights,” Khan said. “It’s a way of ra­tio­nal­iz­ing ac­tivist ten­den­cies.”

Put more suc­cinctly, Nan Aron of the lib­eral Al­liance for Jus­tice said, “In spite of what the White House would like to have us be­lieve, he’s a dan­ger­ous choice.”

By con­trast, Gor­such has been ag­gres­sively vet­ted for the court by con­ser­va­tive groups such as the Her­itage Foun­da­tion, and they have backed him en­thu­si­as­ti­cally. These groups even scru­ti­nized his at­ten­dance at St. John’s Epis­co­pal Church — which draws from the largely lib­eral pop­u­la­tion in Boul­der, Colo., calls it­self a largely lib­eral con­gre­ga­tion and ad­ver­tised on its web­site for the Women’s March in Wash­ing­ton last month — and con­cluded it was not a strike against him.

For their part, the church’s lead­ers al­luded in a re­cent news­let­ter and Sun­day ser­mon to the po­lit­i­cal di­vide be­tween most of its parish­ioners and Gor­such. But they added that Gor­such’s views are not as nar­row or pre­dictable as some might think — or fear.

“I am priv­i­leged to have spent enough time with the fam­ily to come to know Neil as a broad­think­ing man, one ea­ger to lis­ten and learn, and one thought­ful in speak­ing,” wrote the Rev. Su­san W. Springer. “Those foun­da­tional qual­i­ties are ones I would pray that all pub­lic ser­vants in any lead­er­ship role in our coun­try might possess.”

GLENN SUM­MERS/GOR­SUCH FAM­ILY PHOTO

CLOCK­WISE FROM TOP LEFT: Neil Gor­such with his mother, Anne, who was known for rarely back­ing down from po­lit­i­cal com­bat; Stephanie, J.J. and Neil Gor­such moved to Wash­ing­ton when their mother be­came head of the EPA un­der Pres­i­dent Ron­ald Rea­gan; Jus­tice An­tonin Scalia and Neil Gor­such dur­ing a fish­ing trip in Oc­to­ber 2014 near Kremm­ling, Colo.

ANNE MCGILL BURFORD

DAVID RON­ALD GOR­SUCH

1991 HAR­VARD LAW SCHOOL YEAR­BOOK

LOUISE GOR­SUCH

CLOCK­WISE FROM TOP: Neil Gor­such (sec­ond row, fourth from left) was an ed­i­tor on the Har­vard Jour­nal of Law & Pub­lic Pol­icy; Gor­such and his wife, Louise, have two daugh­ters, Emma and Belinda; Louise Gor­such holds the Bi­ble as Neil Gor­such is sworn in to the U.S. Court of Ap­peals for the 10th Cir­cuit in Den­ver. Neil Gor­such was ap­pointed to the court by Pres­i­dent Ge­orge W. Bush in 2006.

DEN­VER POST VIA GETTY IM­AGES

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