Judge Neil Gorsuch testifies before the Senate Judiciary Committee during his confirmation hearing to replace the late Justice Antonin Scalia at the U.S. Supreme Court. March 20, 2017.
Judge Neil Gorsuch testifies before the Senate Judiciary Committee during his confirmation hearing to replace the late Justice Antonin Scalia at the U.S. Supreme Court. March 20, 2017. (Photo: Diego M. Radzinschi/ALM)

Now that he’s been confirmed by the Senate, incoming U.S. Supreme Court Justice Neil Gorsuch won’t have much time for celebrating and reflecting on his new job. He’ll need to get to work.

Most new members of the court are confirmed during the summer recess, allowing for a gradual transition to a new and awesome lifetime position.

But for middle-of-the-term arrivals like Gorsuch and Justice Samuel Alito Jr. who joined the court in February 2006, nothing is gradual. In addition to outfitting a new office and hiring clerks and staff, Gorsuch will have to juggle preparing for court conferences and oral argument and a myriad other obligations.

“When you start in the middle of a term, you are thrust into the panoply of work,” said Adam Ciongoli, who was one of Alito’s first high court clerks. “There is no breathing room. You are learning the macro and the micro at the same time. You are drinking from a fire hose.”

Benjamin Horwich, also one of Alito’s first clerks, uses a different metaphor. “It’s like jumping on a fast treadmill. There’s a certain amount of triage,” said Horwich, a lawyer in the San Francisco office of Munger, Tolles & Olson. He clerked for Justice Sandra Day O’Connor, Alito’s predecessor, and stayed on with Alito.

Both agree that Gorsuch may have an advantage over other newcomers because he clerked at the court in 1993 and 1994, and knows his way around the building. He knows where the cafeteria is, for example, and that’s a good thing: the junior justice is usually assigned to the court’s internal “cafeteria committee.”

Here are some of the first hurdles Gorsuch will face:

Office Space: Not wanting to presume that Gorsuch will be confirmed, court officials refuse to reveal whether Justice Antonin Scalia’s chamber—or any other office—is being made ready for Gorsuch. Until recently, Scalia’s papers and artifacts were being boxed up gradually, but now that Harvard Law School is the designated destination for his papers, the pace may have accelerated. By tradition, current justices have first dibs on vacated offices, but most don’t want to switch offices, allowing the new justice to move into his or her predecessor’s space. And the move can happen quickly, said Horwich. “The court staff is legendary. They were moving Justice O’Connor out as they moved Justice Alito in. It was like ‘special forces’ coming in and taking care of every detail.”

Clerks and staff: Alito and other midterm newbies who were appeals court judges have recruited a mix of clerks from their predecessors’ chambers and from their own roster of past clerks. Of the four clerks Scalia hired for the 2016-17 term, one–Nicole Frazer–is currently clerking for Alito. The other three are lined up for clerkships at the court next term. Gorsuch has a ready stable of his own clerks who would be eager to join him. Ciongoli, who had clerked for Alito when he was an appeals court judge, said, “There is value in having clerks who know the justice quite well, or know the court quite well.” As for other staff members, sitting justices have been known to “loan” secretaries and others who know the building to the new justice. During his confirmation hearing last month, Gorsuch introduced his Tenth Circuit assistant Holly Cody to the Senate Judiciary Committee. “I consider her family,” he said.

Executions: Justices have said that making life and death decisions in death row appeals can be the most difficult part of their job. Arkansas has scheduled eight executions for the 11 days after Easter, and it is certain that eleventh-hour appeals in at least some of them will reach the Supreme Court, said Robert Dunham, executive director of the Death Penalty Information Center. A suit claiming the “assembly line” schedule itself is a constitutional violation could also get to the justices. “Justices of the Supreme Court are people of conscience, and it is not easy for them to grapple with these issues,” Dunham said.

Conference: The justices meets Thursday April 13 for their routine closed-door conference to discuss which pending petitions should be granted. But several days before that, a “discuss list” is prepared by polling the justices about which petitions they would like considered by their colleagues. It would be almost impossible for Gorsuch to contribute to that list in time, unless he has been perusing petitions online while waiting to be confirmed. It might also be challenging for Gorsuch to comment on petitions that have been relisted for several conferences. “You are coming into a group of people who have discussed this matter already,” Horwich said. “You’re the one person in the room who has not been in on that discussion.”

Circuit Assignments: Each new justice is assigned a federal circuit to “supervise” when it comes to emergency appeals and other administrative matters. Eventually some justices get assigned to the circuit from whence they came–Justice Stephen Breyer handles the First Circuit, Alito the Third and Justice Anthony Kennedy the Ninth–but usually not right off the bat.

Oral Argument: The court’s next two-week argument cycle begins April 17, and Gorsuch is likely to spend considerable time between now and then preparing for the arguments. Since he has been on the Tenth Circuit for 10 years, he has developed his own style, which has been described as aggressive but not as combative as his predecessor. The American Bar Association’s report on Gorsuch indicated that some who argued before him reported “challenging situations,” but most said he was respectful and unbiased. Justice Sonia Sotomayor and others have said that asking questions on a panel of nine justices takes getting used to after years of being on a panel of three appeals judges.

Copyright the National Law Journal. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

Now that he’s been confirmed by the Senate, incoming U.S. Supreme Court Justice Neil Gorsuch won’t have much time for celebrating and reflecting on his new job. He’ll need to get to work.

Most new members of the court are confirmed during the summer recess, allowing for a gradual transition to a new and awesome lifetime position.

But for middle-of-the-term arrivals like Gorsuch and Justice Samuel Alito Jr. who joined the court in February 2006, nothing is gradual. In addition to outfitting a new office and hiring clerks and staff, Gorsuch will have to juggle preparing for court conferences and oral argument and a myriad other obligations.

“When you start in the middle of a term, you are thrust into the panoply of work,” said Adam Ciongoli, who was one of Alito’s first high court clerks. “There is no breathing room. You are learning the macro and the micro at the same time. You are drinking from a fire hose.”

Benjamin Horwich, also one of Alito’s first clerks, uses a different metaphor. “It’s like jumping on a fast treadmill. There’s a certain amount of triage,” said Horwich, a lawyer in the San Francisco office of Munger, Tolles & Olson . He clerked for Justice Sandra Day O’Connor, Alito’s predecessor, and stayed on with Alito.

Both agree that Gorsuch may have an advantage over other newcomers because he clerked at the court in 1993 and 1994, and knows his way around the building. He knows where the cafeteria is, for example, and that’s a good thing: the junior justice is usually assigned to the court’s internal “cafeteria committee.”

Here are some of the first hurdles Gorsuch will face:

Office Space: Not wanting to presume that Gorsuch will be confirmed, court officials refuse to reveal whether Justice Antonin Scalia ’s chamber—or any other office—is being made ready for Gorsuch. Until recently, Scalia’s papers and artifacts were being boxed up gradually, but now that Harvard Law School is the designated destination for his papers, the pace may have accelerated. By tradition, current justices have first dibs on vacated offices, but most don’t want to switch offices, allowing the new justice to move into his or her predecessor’s space. And the move can happen quickly, said Horwich. “The court staff is legendary. They were moving Justice O’Connor out as they moved Justice Alito in. It was like ‘special forces’ coming in and taking care of every detail.”

Clerks and staff: Alito and other midterm newbies who were appeals court judges have recruited a mix of clerks from their predecessors’ chambers and from their own roster of past clerks. Of the four clerks Scalia hired for the 2016-17 term, one–Nicole Frazer–is currently clerking for Alito. The other three are lined up for clerkships at the court next term. Gorsuch has a ready stable of his own clerks who would be eager to join him. Ciongoli, who had clerked for Alito when he was an appeals court judge, said, “There is value in having clerks who know the justice quite well, or know the court quite well.” As for other staff members, sitting justices have been known to “loan” secretaries and others who know the building to the new justice. During his confirmation hearing last month, Gorsuch introduced his Tenth Circuit assistant Holly Cody to the Senate Judiciary Committee. “I consider her family,” he said.

Executions: Justices have said that making life and death decisions in death row appeals can be the most difficult part of their job. Arkansas has scheduled eight executions for the 11 days after Easter, and it is certain that eleventh-hour appeals in at least some of them will reach the Supreme Court, said Robert Dunham, executive director of the Death Penalty Information Center. A suit claiming the “assembly line” schedule itself is a constitutional violation could also get to the justices. “Justices of the Supreme Court are people of conscience, and it is not easy for them to grapple with these issues,” Dunham said.

Conference: The justices meets Thursday April 13 for their routine closed-door conference to discuss which pending petitions should be granted. But several days before that, a “discuss list” is prepared by polling the justices about which petitions they would like considered by their colleagues. It would be almost impossible for Gorsuch to contribute to that list in time, unless he has been perusing petitions online while waiting to be confirmed. It might also be challenging for Gorsuch to comment on petitions that have been relisted for several conferences. “You are coming into a group of people who have discussed this matter already,” Horwich said. “You’re the one person in the room who has not been in on that discussion.”

Circuit Assignments: Each new justice is assigned a federal circuit to “supervise” when it comes to emergency appeals and other administrative matters. Eventually some justices get assigned to the circuit from whence they came–Justice Stephen Breyer handles the First Circuit, Alito the Third and Justice Anthony Kennedy the Ninth–but usually not right off the bat.

Oral Argument: The court’s next two-week argument cycle begins April 17, and Gorsuch is likely to spend considerable time between now and then preparing for the arguments. Since he has been on the Tenth Circuit for 10 years, he has developed his own style, which has been described as aggressive but not as combative as his predecessor. The American Bar Association’s report on Gorsuch indicated that some who argued before him reported “challenging situations,” but most said he was respectful and unbiased. Justice Sonia Sotomayor and others have said that asking questions on a panel of nine justices takes getting used to after years of being on a panel of three appeals judges.

Copyright the National Law Journal. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.