This is unusual: One of the people introducing Judge Neil Gorsuch at his confirmation hearing this afternoon is also suing the Trump administration over the second version of the president’s travel ban, which may come before the Supreme Court Gorsuch wants to join.
Neal Katyal was acting solicitor general for then-President Barack Obama, the government’s chief lawyer before the Supreme Court, and his quick endorsement of Gorsuch in a New York Times op-ed was touted by the Trump administration as a recognition of bipartisan support for the nominee (Katyal and Gorsuch served together on the Federal Appellate Rules Committee). Katyal’s piece was titled “Why Liberals Should Back Neil Gorsuch.”
Katyal has been one of the court’s most frequent private-practice advocates since he left the solicitor general’s office. And it’s not unusual for those who practice before the Supreme Court to endorse nominees for the high court in letters or in person. For instance, Gregory Garre, who was solicitor general for then-President George. W. Bush, testified on behalf of Justice Elena Kagan, who succeeded him as Obama’s solicitor general.
But Katyal’s appearance for Gorsuch comes at an unusual time. Katyal is working with the state of Hawaii on its lawsuit against President Trump’s most recent travel ban, which was put on hold by a federal district judge in Hawaii last week.
Judicial ethics experts said they did not expect that any gratitude Gorsuch might feel for Katyal’s help would lead him to contemplate recusal in the travel ban case should it reach the Supreme Court. The justices are often well acquainted with the lawyers who argue before them — friends and former law clerks figure prominently, as well as former law partners or colleagues in government service.
Louis J. Virelli III, a recusal expert at Stetson University College of Law, notes that justices make their own such decisions, and they are not based on issues such as who is representing one of the parties. Charles Geyh, a law professor and judicial ethics expert at Indiana University, said he was not at all troubled “by something as benign as introducing” Gorsuch.
Lawyers are as free to “butter up” a justice as they are to criticize one, Geyh said.