Letter to the Editor in the September 27, 2004 issue of Legal Times. (Credit: ALM) Letter to the Editor in the September 27, 2004 issue of Legal Times.
(Credit: ALM)

 

Thirteen years ago, Neil Gorsuch joined a group of lawyers to strongly object to leaks by former U.S. Supreme Court law clerks who gave Vanity Fair magazine behind-the-scenes information about the court’s decision in Bush v. Gore, the 2000 ruling that led to George W. Bush’s presidency.

“If true, these breaches of each clerk’s duty of confidentiality to his or her appointing justice—and to the court as an institution—cannot be excused as acts of courage or something the clerks were honor-bound to do,” the lawyers wrote in a letter to the editor of Legal Times, which merged with The National Law Journal in 2009.

The letter continued, “To the contrary, this is conduct unbecoming any attorney or legal adviser working in a position of trust. Furthermore, it is behavior that violates the Code of Conduct to which all Supreme Court clerks, as the article itself acknowledges, agree to be bound.”

President Donald Trump announced his intention to nominate Gorsuch to the Supreme Court on Jan. 31. Gorsuch’s participation in the letter signals his embrace of the court’s tradition of secrecy regarding internal deliberations—especially when it comes to law clerks. In addition to the code of conduct requiring clerk confidentiality, the late Chief Justice Warren Burger was said to have threatened that any clerk seen speaking to a reporter for more than 90 seconds would be fired.

The Vanity Fair article, titled “The Path to Florida,” gave a blow-by-blow account of the litigation over Florida’s vote count that unexpectedly made its way to the high court. The court’s sharp divisions were laid bare, and the court’s conservative justices were portrayed as determined to reach a result that would hand victory to Bush.

Lead author David Margolick named several law clerks in the story, though they were not necessarily the clerks that Margolick interviewed. At the time of the article, Margolick said that roughly one-fourth of that term’s 35 clerks spoke with him. Margolick acknowledged the clerks’ confidentiality rule and said that none of the clerks he spoke to disclosed internal documents or conversations with their justices.

But the group of more than 90 lawyers—including Gorsuch—were still upset with the revelations.

“Although the signatories below have differing views on the merits of the Supreme Court’s decisions in the election cases of 2000, they are unanimous in their belief that it is inappropriate for a Supreme Court clerk to disclose confidential information, received in the course of the law clerk’s duties, pertaining to the work of the court. Personal disagreement with the substance of a decision of the court (including the decision to grant a writ of certiorari) does not give any law clerk license to breach his or her duty of confidentiality.”

Perkins Coie partner Andrew McBride, a former clerk to Justice Sandra Day O’Connor, organized the letter-writing effort in 2014 and said Monday that “I remember Neil emailing me with a supportive note.” At the time, Gorsuch was a partner at Kellogg, Huber, Hansen, Todd, Evans & Figel. McBride worked with Gorsuch in private practice during that period, though at a different law firm. “He was a fantastic addition to any litigation team,” McBride said. “A great legal thinker and a very good colleague at the bar to everyone.”

The dozens of signers to the letter included many former law clerks who are familiar names today. Among them: Charles Cooper of Cooper & Kirk, a contender for the position of solicitor general in the Trump administration; Jones Day partner Michael Carvin; Republican Texas senator and former presidential candidate R. Ted Cruz; Steven Engel of Dechert, who Trump plans to nominate to lead the Justice Department’s Office of Legal Counsel; Miguel Estrada and Theodore Olson of Gibson, Dunn & Crutcher; former White House counsel C. Boyden Gray; Allyson Ho of Morgan, Lewis & Bockius; Michael Kellogg of Kellogg Huber; Chris Landau of Kirkland & Ellis; Maureen Mahoney of Latham & Watkins; Carter Phillips of Sidley Austin; Bert Rein of Wiley Rein; Margaret Ryan, now a judge on the U.S. Court of Appeals for the Armed Forces who, like Gorsuch, was on Trump’s list of possible nominees; Kenneth Starr, former judge, solicitor general and president of Baylor University; Aaron Streett of Baker Botts; and Richard Taranto, a judge on the U.S. Court of Appeals for the Federal Circuit. Former attorneys general William Barr and Richard Thornburgh also signed on.

Reminded that Gorsuch was one of the signers of the letter to the editor, Margolick said in an email Sunday, “It’s a fair point: a ‘strict constructionist’ would object to law clerks talking out of school, even if it were to help shed light on an indefensible opinion. Of course, a ‘strict constructionist’ would also be appalled by what the majority did in Bush v. Gore. That’s a much more important issue, and somehow I doubt very much that Gorsuch weighed in on that.”

Contact Tony Mauro at tmauro@alm.com. On Twitter: @Tonymauro