Power Wars Blog by Charlie Savage

In Potential Recusal Reversal, Neil Gorsuch Leaves Door Open to Hearing Supreme Court Cases Involving Billionaire Backer Philip Anschutz

My Denver-based colleague Julie Turkewitz and I have been taking a look at the relationship between Neil Gorsuch, the Supreme Court nominee, and Colorado billionaire Philip Anschutz. The New York Times published it tonight and it will be in tomorrow’s newspaper. One thing the article deals with briefly is the question of whether Gorsuch will recuse himself from cases involving Anschutz’s numerous business interests. This is too weedy of an issue to plumb in depth in a newspaper article, but I’ll explore it a bit more here for legal ethics nerds.

Bottom line up front: Gorsuch systematically sought to recuse himself from such cases on the appeals court, but he is signaling that he may change that practice and leave himself free to participate in cases involving Anschutz’s interests if he is confirmed to the Supreme Court.

THE RECUSAL ISSUE, IN DEPTH

At the appeals court, Gorsuch routinely recused himself (with one slip-up) from Anschutz related cases “because my former client” was involved, according to a list he submitted to the Senate. When working on the article, I asked him, via his team, whether he would continue that same practice at the Supreme Court, expecting to hear “yes.” But that’s not what they said.

Instead, his spokeswoman, Liz Johnson, emphasized to me that his recusal practice at the appeals court “likely goes well beyond what is required by law or his ethical obligations.” And she pointed me to a section about recusals in his recent Senate questionnaire in which, while pledging to recuse from “cases that might give rise to an actual or apparent conflict of interest,” he also wrote that his appeals court precautions have been “broader than the recusal procedure adopted in the Supreme Court, which I would follow should l assume the position to which I have been nominated.”

Let’s unpack that. The first thing to know is that justices don’t like to recuse in part because, unlike at the appeals court level, there is no one to replace them if they step aside. And the Supreme Court’s procedure is that individual justices decide for themselves whether a vague standard for recusal set by a 1974 statute is met; there is no appeal if they decide to stay on a case.

That statute says judges and justices should recuse whenever their “impartiality might reasonably be questioned.” So it goes beyond situations where a judge has an actual conflict of interest that would make it unethical to participate in a case; the idea is to preserve public confidence that the judiciary is fair by having judges and justices step aside even when there is only an appearance of a conflict. But the statute does not specifically address whether an observer might reasonably think that a justice like Gorsuch might be biased in favor of a former client (and more!) like Anschutz.

There is not a lot of precedent to examine for guidance about how justices have interpreted the issue of whether cases involving former clients raise an actual or apparent conflict of interest, in part because few modern justices had extensive backgrounds in private practice. But the clearest precedent suggests that it’s acceptable to hear cases involving a former client: Justice Clarence Thomas, who worked as in-house counsel for Monsanto from 1977 to 1979, nevertheless has participated in cases involving that company.

I followed up via Ms. Johnson, saying the roundabout answer, in light of all this, strongly suggested that Judge Gorsuch was leaving himself free to start participating in Anschutz-linked cases at the Supreme Court and requesting clarification if that was not his intended signal. She checked back and provided no further response on his behalf regarding the topic.

BACKGROUND:

Anschutz is an oil and gas mogul who has diversified into a sprawling empire across many different companies and sectors, which inevitably leads to business-related litigation from contract disputes and environmental fights to shareholder lawsuits. He’s also a major donor to Republican campaigns and to a long list of conservative advocacy groups, including the Federalist Society and the Heritage Foundation. They worked together to develop the list of potential Supreme Court nominees from which then-candidate Trump promised conservatives he would pick, putting Gorsuch’s name on it.

Gorsuch has longstanding ties to Anschutz and his network:

  • In the early 2000s, while working at a law firm, Gorsuch represented Anschutz and his companies in a variety of lawsuits and other matters as outside counsel
  • In 2005, after leaving his law firm to join the Bush Justice Department, Gorsuch formed a limited-liability company with two Anschutz lieutenants: Cannon Harvey, a confidante of Anschutz who runs his company’s venture capital arm, and Kevin Conwick, Anschutz’s lead counsel on numerous sports team and stadium development deals through the years. They bought, and still own, a 40-acre vacation property along the Colorado River, where they built a house. Gorsuch has the smallest stake in the company, but county property records direct correspondence about it to him.
  • In 2006, Anschutz helped secure Gorsuch’s appointment to a vacant Colorado seat on the federal appeals court in Denver, first by suggesting to Colorado’s only Republican senator at the time, Wayne Allard, a major recipient of Anschutz-related campaign donations, that Gorsuch was the one.  (Home-state senators, especially of the president’s party, have significant influence over whom a president nominates to judgeships in their states, including veto power through the Senate’s blue-slip process.) With Allard’s blessing, Anschutz then took his case to the White House.
    • UPDATE: This does not appear to be a case of Gorsuch already being in the mix and Anschutz adding his voice to the chorus of praise; rather, there is evidence Anschutz instigated it:
      • On January 10, 2006, the Denver Post reported the names of three people the White House was said to be considering for the pending vacancy; Gorsuch was not one of them. (Its sourcing was anonymous, but the reporter was clearly well sourced in the office of Senator Wayne Allard, and she later had the scoop that the White House had told Allard that Gorsuch was the nominee.)
      • On January 12, Anschutz’s lawyer sent the letter to White House Counsel Harriet Miers “to suggest that the President consider” nominating Gorsuch, saying Anschutz had already spoken to Allard about it. The letter included an introduction to Gorsuch: his resume and a one-page summary of why he’d be a good choice re Colorado roots and Republican credentials.
      • On February 2, Gorsuch was interviewed by Miers and other WHC lawyers.
      • On March 16, Bush approved their recommendation that he make Gorsuch the lead candidate for the nomination, pending a background check.
  • Since becoming a judge, Gorsuch has been a semi-regular keynote speaker at Anschutz’s annual dove hunt parties for fellow elites – speaking there in 2010, 2012 or 2013, and 2015, according to his Senate Judiciary Committee questionnaire