U.S. Supreme Court nominee Neil Gorsuch warned in 2010 that the trend toward too much discovery and too few trials in civil litigation, as well as the “vitriol” of judicial confirmation hearings, were threatening the rule of law in America.
“Speaking candidly, nothing is inevitable and we can’t take the rule of law in our [society] for granted,” Gorsuch wrote in notes prepared for a speech in Colorado. The notes were submitted recently in supplemental filings with the Senate Judiciary Committee in anticipation of Gorsuch’s confirmation hearing beginning March 20.
“Our legal system is still [the] envy of much of [the] world,” Gorsuch wrote in shorthand note form. But, he added, “Can’t assume these problems will take care of themselves. Already longest lived democracy in history. Other [democracies] to reach our age lost control, decayed, given in to despotic rule.”
Then, as now, a judge on the U.S. Court of Appeals for the Tenth Circuit, Gorsuch gave his bleak portrayal of the legal system—it even included an excerpt from Charles Dickens’ “Bleak House”—to attendees at the Phil Anschutz Annual Dove Hunt at Eagle Nest Ranch, according to a questionnaire submitted to the Senate.
Gorsuch represented Anschutz, a conservative Colorado billionaire, while in private practice at the Washington firm now known as Kellogg, Hansen, Todd, Figel & Frederick, before joining the appeals court in 2006. Anschutz and his wife, Nancy Anschutz, donated more than $1 million to Republican candidates, and none to Democrats, in 2016, according to OpenSecrets.org.
In a tally of Gorsuch’s more than 1,000 recusals during his tenure on the Tenth Circuit, more than 50 recusals came in cases in which a party had some connection to Phil Anschutz—including Qwest Corp., which he founded, and Union Pacific Railroad, where he is a director. In each such recusal, Gorsuch said the cause was involvement by “my former client or colleague.”
In his 2010 talk, Gorsuch criticized the discovery process in civil litigation as too expensive and too long. “Not long ago, we used to have trials without discovery. Now we have discovery without trials,” he said, pointing to United States v. IBM, the antitrust case which he said lasted 13 years and produced 66 million pages in discovery before it was “quietly dropped.” Gorsuch made similar comments about discovery in his 2013 Barbara Olson lecture before the Federalist Society.
Gorsuch also recalled a case in which he was “called in to help at trial at the last minute” while he was in private practice before becoming a judge. The Florida case, which he labeled as Perelman v. Morgan Stanley, was “a multibillion-dollar fraud case” that became “a trial not on the merits of the fraud, but one over discovery compliance by [Morgan Stanley] and its predecessor lawyers.” Gorsuch represented Morgan Stanley in the case.
The trend “prices many out of court,” Gorsuch wrote, and “encourages people to settle nonmeritorious suits rather than try them. It’s cheaper to settle than win.” That, in turn, produces “a lack of transparency,” Gorsuch said. “Justice is dispensed in confidential settlement, not courtroom verdict.”
He added, “Hate to say it, but my brothers and sisters at the bar benefit from all this. Today, it’s estimated that half of law firm revenues come from discovery. I wonder if that understates it. Many lawyers don’t even know how to try cases anymore.”
Gorsuch also lamented “recent efforts to sidestep legal process,” citing the trend toward arbitration and mediation, as well as what he described as an “effort by [government] to sidestep normal legal dispute resolution processes to create its own ad hoc private justice programs.”
As examples, Gorsuch cited the federal government’s intervention in the Chrysler bankruptcy in 2009 as well as in the aftermath of the BP oil spill in 2010. In the case of BP, Gorsuch said, the federal government “created a wholly independent judicial system headed by a private hire-a-judge who feels unconstrained to write and speak publicly about the case.” He was likely referring to Kenneth Feinberg of Feinberg Law Offices in Washington, also a close friend of Justice Stephen Breyer.
As for the judicial confirmation process, Gorsuch said in the speech notes that it was understandable that “political branches want to take a close look at nominees for jobs with life tenure, [especially] when we live in [a] system where judges have last word on Constitution, empowered to strike down legislation.”
At the same time, however, Gorsuch said the “degree and vitriol” associated with the nomination and confirmation process has “changed dramatically in recent years.” That level of confirmation rancor at the Supreme Court level, he said, is the “tip of [the] iceberg. What you don’t see is larger portion of the behemoth swimming beneath the surface.”