Supreme Court nominee Neil Gorsuch, a Westerner, faces scrutiny over the 13 months he spent at the Justice Department in Washington more than a decade ago.(Photo: Mark Wilson, Getty Images)
WASHINGTON — President Trump's search for a Supreme Court justice focused on the American heartland, far from the nation's capital. He found his man 1,500 miles away in Colorado.
But the year Supreme Court nominee Neil Gorsuch spent in Washington as a high-ranking Justice Department official may be emerging as a point of contention in his bid for Senate confirmation.
With the Senate Judiciary Committee hearing on Gorsuch's nomination set to begin in less than two weeks, the panel's leaders late Wednesday received more than 144,000 pages of documents from Gorsuch's 13-month tenure at the Justice Department in 2005-06. At the time, the agency was wrestling with issues such as how to treat terror suspects and justify warrantless wiretaps.
The document dump followed requests issued two weeks ago by committee Chairman Chuck Grassley and ranking Democrat Dianne Feinstein. The department said it would make an additional 3,136 pages of confidential information accessible to committee staff, while withholding documents "that set forth attorney litigation work product."
Still pending is a similar request for documents from the George W. Bush Presidential Library, including emails between Gorsuch and White House staff.
It was a tumultuous time: The "war on terror" included policies on the use of military commissions, the treatment of detainees at Guantanamo Bay, and the surveillance methods of U.S. intelligence agencies. The president was claiming broad executive powers and leaving it up to his lawyers to defend them.
In the lengthy questionnaire he was required to submit after his Jan. 31 nomination, Gorsuch said he attended Council on Foreign Relations events in 2006 that focused on detainee interrogation and treatment issues. He also said he might have attended additional meetings that covered Iraq, al Qaeda and the USA Patriot Act, the government's major counter-terrorism statute.
Domestically, the department was engaged in a major court battle over abortion rights, defending Congress' ban on so-called "partial birth" abortions. It slashed from $130 billion to $10 billion the amount of money it was seeking from tobacco manufacturers for fraud and racketeering violations.Shedding light
As principal deputy associate attorney general — the top aide to the department's third-ranking official — Gorsuch's jurisdiction ranged from antitrust to civil rights to tax law. While it did not directly include national security, his work on court cases may shed light on how he interprets the Constitution and federal laws.
“I can understand why there would be some interest in seeing that kind of information,” said former attorney general Alberto Gonzales, now dean of Belmont University College of Law, who recalled Gorsuch as well-respected and well-prepared.
“I really don’t recall anything that would present a problem," Gonzales said. "Neil would have taken a pretty measured and very conservative approach, in terms of giving advice."
Among the 144,182 pages of documents delivered to the committee were pages from Gorsuch's staff file and email "connected to significant cases handled by the department during Judge Gorsuch's tenure," wrote Acting Assistant Attorney General Samuel Ramer.
“The department has demonstrated remarkable transparency in providing these documents to the committee," Grassley said.
Feinstein, who will play the leading role for Democrats in the confirmation hearing, also requested information on court cases involving abortion rights, military commissions, detention at Guantanamo Bay, warrantless wiretaps and other issues. “It appears that you were extensively involved in key decision-making at the Justice Department in relation to a number of important and controversial cases,” she said in her Feb. 22 letter to Gorsuch.
In response, Acting Assistant Attorney General Ryan Newman said Gorsuch reviewed court rulings, discussed litigation options and monitored developments in many of the cases, but not the partial-birth abortion case.
The influential role played by Gorsuch, 49, while still in his 30s should be no surprise, former Justice Department officials said.
"Top-notch people are brought into the Justice Department’s upper-level jobs specifically to think through and handle the department’s most difficult and high-profile issues," said Kenneth Wainstein, the department's first assistant attorney general for national security. "Neil was one of those top-notch people."Outside interest
Supreme Court nominee Neil Gorsuch arriving for another meeting with a member of the Senate last month. (Photo: Susan Walsh, AP)
Gorsuch's Justice Department days have been of interest to outside groups as well. The watchdog group Fix the Court filed a Freedom of Information Act request and later a lawsuit in pursuit of documents from the 2005-06 period.
“For the American people and the senators who represent them to make an informed assessment of the Supreme Court nominee, all non-classified information regarding his DOJ tenure should be out in the open," executive director Gabe Roth said.
A coalition of civil rights groups urged the Senate committee to look into Gorsuch's involvement in voting rights cases and hiring practices.
"On Gorsuch’s watch, political appointees ran roughshod over career attorneys who sought to lodge Section 5 objections under the Voting Rights Act to Georgia’s photo ID law," they claimed. "In addition, during the year in which Gorsuch helped manage the Civil Rights Division, political appointees there engaged in unlawful hiring discrimination against lawyers with liberal affiliations."
Former Justice Department officials who served in the Bush administration acknowledged it was a controversial period, but they see the request for documents as part of a routine investigation.
John Yoo, former deputy assistant attorney general in the Office of Legal Counsel, likened it to Democrats' demands for "secret memos" written by former Justice Department official Miguel Estrada after his nomination for a seat on the U.S. Court of Appeals for the D.C. Circuit in 2001. Democrats blocked confirmation for more than two years until Estrada withdrew, marking the first time an appeals court nominee had been denied a vote.
“If this is all the Democrats have, they’re going to be shooting blanks during the confirmation hearing,” Yoo said.