- The Washington Times
Sunday, March 26, 2017

Judge Neil Gorsuch is facing questions about conflict of interest from senators on both sides of the aisle about nearly 1,000 cases the Supreme Court nominee recused himself from hearing during his time on the circuit court.

As a former lawyer for a prominent Washington firm and also as a key staffer in the Justice Department’s civil division during the Bush administration, the judge said he took part in debates on issues that later came up in the cases he saw while serving on the bench. Rather than taint court rulings in those cases, he said he recused himself.

“For me, it was significant because I had been in the government in a position of where we oversaw a number different litigating units. That causes a fair amount of recusal right there,” he said.

The judge said his recusals in the 10th Circuit Court of Appeals, where he currently sits, were a matter of routine. Judges make lists ahead of time of their former clients, and the court’s clerk then screens out cases to make sure they don’t end up with a conflict later.

But he would not commit to the same level of recusals on the Supreme Court, saying he’ll wait to see what the rules are there.

During Judge Gorsuch’s confirmation hearing last week, Sen. Patrick Leahy, Vermont Democrat, asked how he would handle cases involving Philip F. Anschutz, a billionaire that Judge Gorsuch represented as a young attorney.

Mr. Anschutz’s foundation has also donated to the Federalist Society, a lawyers’ association that helped President Trump write the list of potential Supreme Court nominees he used to select Judge Gorsuch.

“He is a former client and I treated him as I treated my former clients, large and small,” Judge Gorsuch told Mr. Leahy.

Lumen Mulligan, an associate dean at the University of Kansas School of Law, told The Washington Times that nearly 1,000 recusals is “definitely more than average” in the 10th Circuit.

But Mr. Mulligan, who clerked on the circuit before Judge Gorsuch’s time and later argued cases before him, said that high number of recusals indicates a judge who’s being very careful not to cross ethical lines.

He also said Judge Gorsuch’s professional background was different than other judges on the circuit, who practiced more locally on regional matters, making the range of potential conflict of interests less of an issue for them.

Mr. Mulligan also said that since the clerk’s office screens out cases ahead of time, Judge Gorsuch may not even know he had been recused from a particular case.

Federal judges are required to recuse themselves if there is an actual conflict of interest or even an appearance of a conflict. But at the Supreme Court, it is a little different, with justices erring on the side of hearing cases.

“There’s an actual obligation to hear cases at the Supreme Court level because they have the nine justices. They have an obligation unless they really can’t,” said Mr. Mulligan.

He doesn’t believe Judge Gorsuch would have issues regarding recusals if he is confirmed to the Supreme Court.

“He’s been out of private practice and government service for a decade much removed from those matters,” said Mr. Mulligan.

Melissa Mortazavi, an ethics professor at the University of Oklahoma College of Law, said Judge Gorsuch’s high number of recusals could be “a sign of a measured jurist.”

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