Judge Neil Gorsuch testifies before the Senate Judiciary Committee during the second day of his confirmation hearing to replace the late Justice Antonin Scalia at the U.S. Supreme Court. March 21, 2017. (Photo: Diego M. Radzinschi/ALM) Judge Neil Gorsuch testifies before the Senate Judiciary Committee during the second day of his confirmation hearing to replace the late Justice Antonin Scalia at the U.S. Supreme Court. March 21, 2017. (Photo: Diego M. Radzinschi/ALM)

 

New U.S. Supreme Court Justice Neil Gorsuch’s first day on the bench Monday was no baptism by fire. The three highly technical cases argued before him produced no sparks or flames.

But his debut provides some early clues about his demeanor as the rookie justice. Some highlights:

Warm welcome: With long lines of spectators outside, and a full lawyers’ section inside, Gorsuch was clearly the main attraction Monday. At the stroke of 10 a.m., a smiling Gorsuch emerged from behind the curtains and took his seat on the far right of the bench, which was arrayed with nine chairs for the first time in more than a year. Chief Justice John Roberts Jr. wished Gorsuch “a long and happy career in our common calling.” Gorsuch then uttered his first words, thanking “each of my new colleagues for the very warm welcome I’ve received this last week. I appreciate it greatly.”

No shrinking violet: To prepare for the arguments this week and next, Gorsuch did not attend last week’s private conference, where justices discuss adding new cases to their docket. That also means he did not have to perform junior-justice chores during the conference. The cramming showed, as Gorsuch seemed up on the minutiae of all three cases—two on civil procedure and one on standing. He turned out to be a persistent questioner, engaging Kirkland & Ellis lawyer Christopher Landau in a lengthy discussion about standards of review and the need to follow the “plain language” of a federal statute. It was the kind of discussion that may have been common in his last job as one of three judges on an appeals court panel, but went longer than most Supreme Court colloquies.

Recusal refusal: There was some brief suspense about whether Gorsuch would get up and leave the bench when the second argument of the day began. That’s because the case Town of Chester, New York v. Laroe Estates was being argued by Hogan Lovells partner Neal Katyal, a high-profile advocate for Gorsuch’s confirmation last month. Some ethics experts thought it was possible Gorsuch would recuse because of Katyal’s role in the confirmation proceedings, where Katyal introduced Gorsuch to the Senate Judiciary Committee, and Gorsuch called Katyal “my friend.” But Gorsuch stayed put and participated in the case, though he did not ask Katyal any questions. When it comes to recusals, there is a powerful dynamic at the court that may have compelled Gorsuch to stay in the case: Justices don’t want to recuse themselves in a way that could pressure their colleagues into also recusing in similar circumstances. In other words, Gorsuch may have felt that if he recused because of Katyal’s role, other justices might feel compelled to do the same when lawyers who are friends or former colleagues argue—and many Supreme Court advocates would fit that description.

Still a rookie: The first case, Perry v. Merit Systems Protection Board, was dense and convoluted, testing which legal route must be taken when federal employees claim discrimination. Justice Samuel Alito Jr. exclaimed at one point, “Nobody who is not a lawyer, and no ordinary lawyer could read these statutes and figure out what they are supposed to do.” And Justice Sonia Sotomayor triggered laughter when she said to one of the lawyers, “So if we go down your route, and I’m writing that opinion—which I hope not…” Gorsuch, who sits next to Sotomayor, displayed a tight smile, perhaps realizing that as the junior justice, he may get stuck with writing the Perry opinion himself.


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