Judge Neil Gorsuch testifies before the Senate Judiciary Committee.
In a revealing moment of regret, U.S. Supreme Court nominee Neil Gorsuch said Wednesday that a 2006 email he wrote calling negative attention to big-firm lawyers who were representing Guantanamo detainees was “not my finest moment.”
Sen. Dick Durbin, D-Illinois, confronted Gorsuch about the email, disclosed among thousands of pages of documents from Gorsuch’s time in the U.S. Justice Department’s Civil Division from 2005 to 2006.
The subject line of the email was “Elite Law Firm Pro Bono Work for Terrorists.” Excerpting a news item about the growing number of top law firms that had signed on to represent detainees, Gorsuch wrote: “It seems odd to me that more hasn’t been made about this.” The name of the recipient of the email was redacted.
During that period Big Law firms came under criticism for representing detainees in habeas appeals. In 2007, U.S. Defense Department official Cully Stimson urged companies not to do business with law firms that represented Guantanamo detainees. He resigned after the ensuing uproar.
Here’s an excerpt from the exchange between Durbin and Gorsuch:
Durbin:
I want to ask you about an email you sent at Justice. The subject line was “Elite law firm pro bono work for terrorists.” You included an article about conservatives criticizing lawyers who were representing Guantanamo detainees and a list of their law firms. You sent this email to someone working on this committee and you said: “I thought you might find this of interest. It seems odd to me that more hasn’t been made of this. See especially the list of firms below.” This was one of several emails you sent criticizing and drawing attention to lawyers representing Guantanamo detainees.
Chief Justice John Roberts, when he appeared before this committee, was asked about the fact that he’d represented some unpopular clients and said: “Our founders thought that they were not being given their rights under the British system to which they were entitled and by representing the British soldiers, John Adams helped show that what they were about was defending the rule of law, not undermining it. And that principle—that you don’t identify the lawyer with the particular view of the client or the views that the lawyer advances on behalf of a client—is critical to the fair administration of justice.”
So, for the record, would you put in perspective any comments that you made about people representing Guantanamo detainees?
Gorsuch:
Senator, my friend Neal Katyal, who introduced me, successfully represented some of those detainees. And I have nothing but admiration for those lawyers. The email you’re referring to is not my finest moment blowing off steam with a friend, privately. The truth is, I think my career is better than that. When I’ve seen individuals who’ve needed representation as a judge—when I’ve gotten handwritten pro se filings, when I’ve seen something that might have merit in it—I’ve picked up the phone. When I’ve seen lawyers who are not representing even undocumented aliens appropriately, I’ve done something about it. I’d like to think my career taken as a whole, senator, represents my values appropriately.
Several years after Gorsuch’s email, conservatives and Republican lawmakers would criticize some Obama administration lawyers who had worked pro bono representing Guantanamo detainees. Prominent lawyers in Washington and elsewhere responded forcefully to the criticism, calling the attacks unjustified.
Then-U.S. Attorney General Eric Holder Jr., addressing the outcry, defended pro bono service.
“As you all know, advancing the cause of justice sometimes means working for the sake of the fairness and integrity of our system of justice,” Holder said in a 2010 speech. “This is why lawyers who accept our professional responsibility to protect the rule of law, the right to counsel, and access to our courts—even when this requires defending unpopular positions or clients—deserve the praise and gratitude of all Americans.”
Holder continued: “They also deserve respect. Those who reaffirm our nation’s most essential and enduring values do not deserve to have their own values questioned. Let me be clear about this: Lawyers who provide counsel for the unpopular are, and should be treated as what they are: patriots.”
The “Gitmo bar” reached at its peak more than 500 lawyers from major law firms, public defender offices, law schools and public interest shops. A Jenner & Block partner in 2015 put it like this: “It was perhaps the greatest pro bono mass effort this country has ever seen.”
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