Learn a bit about our next Supreme Court Judge - Tenth Circuit Judge Neil Gorsuch -

Learn a bit about our next Supreme Court Justice -  Tenth Circuit Judge Neil Gorsuch -

President Donald Trump nominates Tenth Circuit Judge Neil Gorsuch to the Supreme Court of The United States of America

On September 11, 2001, at the age of 45 and at the height of her professional and personal life, Barbara K. Olson was murdered in the terrorist attacks against the United States as a passenger on the hijacked American Airlines flight that was flown into the Pentagon.

The Federalist Society established this annual lecture in Barbara's memory because of her enormous contributions as an active member, supporter, and volunteer leader. Solicitor General Theodore B. Olson delivered the first lecture in November 2001. The lecture series continued in following years with other notable individuals.

In 2013, the Honorable Neil M. Gorsuch of the United States Court of Appeals for the Tenth Circuit delivered the lecture. He was introduced by Mr. Eugene B. Meyer, President of the Federalist Society.

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I want to welcome you all

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13th annual Barbara

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memorial lecture I am eugene meyer

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President of the Federal society and

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this memorial lecture series started as

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many of you know with Ted Olson

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inaugural lecture which reminded us of

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what it means to be an American and how

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are legal tradition is part of our

0:30

identity as Americans both dead and

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Barbara understood this disconnection

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between our tradition our identity we

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want the lecture series to remind

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lawyers of it so that they foster legal

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principles that advanced individual

0:46

freedom personal responsibility and the

0:48

rule of law tends inaugural lecture was

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followed by ken starr Robert Bork

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Justice Scalia judge Randolph Vice

0:58

President Cheney and chief justice

1:00

roberts and judges he gets Jones Douglas

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Ginsburg and Dennis Jacob's former

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attorney General Michael Mukasey and

1:08

entrepreneur Peter teal that brings us

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to today's lecture is my honor to

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introduce for today's lecture the

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Honorable Neil gorgeous is a judge for

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the US Court of Appeals on the tenth

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circuit where he served since 1986

1:25

before his clerkship a force judgeship

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rather he clerked

1:31

all the way clerkship applications or

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and things are going these days you have

1:36

no idea what the order is gonna fit

1:40

I actually think they're going to send

1:41

out the clerkship applications or with

1:43

with the emits with the additions to law

1:45

school the way way it's going but anyone

1:47

on before his clerkship he clerked for

1:49

justices wieden kennedy and on the court

1:52

of appeals for judges and tell he was a

1:55

partner Kelly cuber and principal deputy

1:57

associate attorney general in addition

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to his judge ship is also currently an

2:03

adjunct law professor at the University

2:04

of Colorado where he he taught what he

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taught yesterday accident yesterday

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evening and I'd say beyond his paper

2:13

resume judge course which is widely

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viewed as one of the best legal minds of

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his generation

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additionally even as young age he has

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met heard many of his clerks who have

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gone on too many prestigious legal jobs

2:27

including clerkship for the US supreme

2:29

court without further ado it is my honor

2:33

to introduce to you judge neil questions

2:46

actually Jean with the judicial salaries

2:50

being what they are and clerkship

2:52

bonuses what they become I've been more

2:58

than tempted to throw in another

2:59

application justice candidate see where

3:02

it goes

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I'm not sure I want to be a law partner

3:07

again but I wouldn't mind being putting

3:08

those little room and told right briefs

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all day for the price that they're

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getting paid

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Eric thank you for that very kind

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introduction

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it's an honor to be with you in a

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special pleasure to be part of a lecture

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series dedicated to the memory Barbara

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Olson and the causes that she held dear

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the rule of law limited government and

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human liberty and it's not a little dot

3:31

little bit daunting to be added the list

3:33

of folks you've mentioned who given this

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talk before

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let me begin by asking whether any of

3:41

you have ever suffered through a case

3:43

that sounds like this one in the course

3:46

of time this suit has become so

3:48

complicated that no man alive knows what

3:52

it means a long procession of judges has

3:57

come in and going out the Legion of

3:59

bills and the suit had become

4:01

transformed into mere Bills of mortality

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but still it drags its very length

4:07

before the court parentally hopeless

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how familiar to set

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could it be a line lifted maybe from a

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speaker at a recent electronic discovery

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conference from a brief for sanctions

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your latest case maybe from a recent

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judicial performance complaint

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well of course the line comes from

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Dickens Bleak House published 1853 it

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still resonates today though because the

4:37

laws promise of deliberation and due

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process sometimes ironically invites the

4:42

in justices of delay and ear resolution

4:45

like any human Enterprise the laws

4:48

crooked timber occasionally produces the

4:50

opposite of the intended effect we turn

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to the law earnestly to promote a worthy

4:55

idea and wind up with a host of

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unwelcome side effects that do more harm

4:59

than good

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in fact when you think about it the

5:02

whole business is something an irony we

5:04

depend upon the rule of law to guarantee

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freedom but we have to give up freedom

5:08

to live under the laws rules and around

5:11

about way that leads me to the topic I'd

5:14

like to discuss with you tonight laws

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irony Dickens had a keen eye for it but

5:21

even he was only reworking familiar

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themes Hamlet rude the laws delay girder

5:26

left the practice of law and discussed

5:28

after witnessing thousands of aging

5:30

cases waiting vainly for resolution in

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the courts of his time

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demosthenes made similar complaints

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2,000 years ago and truth is I fully

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expect lawyers and judges to carry on

5:42

similar conversations about the laws

5:44

ironies 2,000 years from now but just

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because some unwelcome ironies maybe as

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endemic to law as they are to life

5:54

Dickens would remind us that's hardly

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reason to let them go unremarked and

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then addressed so it is I'd like to

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begin by discussing a few of the laws

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ironies that I imagine he would consider

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worthy of attention by us in our own

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time consider first hour version of the

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Bleak House irony

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yes i'm referring to civil discovery

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the adoption of the modern rules of

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civil procedure in 1938 marked the start

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of a self-proclaimed experiment with

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expansive pretrial discovery something

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previously unknown to the federal courts

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more than 70 years later we still call

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those rules the new and the modern rules

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of civil procedure that's a pretty odd

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thing when you think about it maybe the

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only thing that really sounds newer

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modern after 70 years is keith richards

6:49

of The Rolling Stones some might say

6:54

looks like he's done some experimenting

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to in any event or 1938 forefathers

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expressly rested their modern discovery

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experiment on the assumption that with

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ready access to an opponent's

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information parties to civil disputes

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would achieve fair and cheaper merits

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based resolutions

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how's that working out for you

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does modern discovery practice really

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lead to faster and more efficient

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resolutions based on the merits

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I don't doubt it does in many cases but

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should we be concerned when eighty

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percent of the american college of trial

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lawyers say the discovery costs and

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delays keep injured parties from

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bringing valid claims to court or

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concern when 70-percent also say

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attorneys use discovery cost is a threat

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to force settlements that aren't merits

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based at all

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have we may be gone so far down the road

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of civil discovery that ironically

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enough we begun to undermine the

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purposes that animated our journey the

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first place

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what we have today to be sure is not

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your father's discovery producing

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discovery anymore doesn't mean rolling a

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stack of bankers boxes across the street

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we live in an age when every bit and

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byte of information is stored seemingly

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forever and is always retrievable if

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sometimes only at the cost of a small

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fortune today the world sends 50

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trillion emails a year an average

8:22

employees sends or receives over a

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hundred everyday that doesn't begin to

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count the billions of instant messages

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shooting around the globe

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this isn't a world the writers of the

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discovery rules could have imagined in

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1938 no matter how modern they were no

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surprise then that many people now

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simply opt out of the civil justice

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system altogether private ATR bounds but

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even now the federal government has

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begun avoiding its own court system

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recently for example it opted for

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private ADR to handle claims arising

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from the BP oil spill

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now that may be an understandable

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development given the costs and delays

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inherent in modern civil practice but it

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raises questions to about the

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transparency and independence of the

9:05

decision-making the lack of the

9:07

development of precedent in the future

9:09

role of our courts and civic life for

9:13

society aspiring to live under the rule

9:15

of law does this represent an advanced

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perhaps something else we might even ask

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what part the rise of discoveries played

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in the demise of the trial surely other

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factors are play here given the

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disappearance criminal trials as well

9:29

but we've now trained generations of

9:32

attorneys as discovery artists rather

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than trial lawyers they're skilled in

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the game of imposing invading costs and

9:40

delays their poets of the nasty gram

9:43

able to write interrogatories in iambic

9:47

pentameter get terrified of trial the

9:53

founders thought trials were a bulwark

9:55

of the rule of law as far as Hamilton

9:58

saw the only room for debate was over

9:59

when / weathered retrials were in his

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words either a valuable safeguard the

10:04

liberty with a very palladium

10:06

self-government what is that still

10:08

common ground today no doubt our modern

10:11

discovery experiment is well-intentioned

10:13

get one of its effects has been to

10:15

contribute to the death of an

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institution once thought essential to

10:19

the rule of law

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what about our criminal justice system

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you might ask it surely bears its share

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of ironies to consider this one without

10:30

question the discipline of writing the

10:33

law down of Cardiff eyeing it advances

10:35

the laws interest in fair notice but

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today we have about 5,000 federal

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criminal statutes on the books

10:43

most of them added in the last few

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decades and the spigot keeps pourin with

10:48

literally hundreds of new statutory

10:50

crimes think every single year

10:53

neither does that begin to count the

10:55

thousands of additional regulatory

10:56

crimes buried in the federal register

10:58

there are so many crimes cowled in the

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numbing fine print of those pages the

11:05

scholars have given up counting and are

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now debating their number when he led

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the Senate Judiciary Committee Joe Biden

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worried that we have assumed a tendency

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to federalize quote everything that

11:16

walks talks and moves maybe we should

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say hoots too because it's now a federal

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crime to misuse the likeness of woodsy

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the owl or is more words give a hoot

11:29

don't pollute businessmen who import

11:32

lobster tails and plastic bags rather

11:34

than cardboard boxes can be brought up

11:36

on charges mattress sellers remove that

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little tag

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yes they're probably federal criminals

11:42

to whether because of Public Choice

11:45

problems or otherwise there appears to

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be a ratchet relentlessly clicking away

11:49

always in the direction of more never

11:52

fewer federal criminal walls some reply

11:55

that the growing number of federal

11:56

crimes isn't out of proportion to our

11:58

population and its growth others suggest

12:01

that the proliferation of federal

12:02

criminal laws can be mitigated by

12:04

allowing the mistake of law defense to

12:06

be more widely asserted but isn't there

12:09

a trouble irony lurking here in any

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event without written laws we lack fair

12:14

notice of the rules we as citizens have

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to obey but with too many written laws

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don't we invite a new kind of fair

12:22

notice problem and what happens to

12:24

individual freedom and equality when the

12:26

criminal law comes to cover so many

12:28

facets of daily life

12:30

the prosecutors can almost choose their

12:32

targets with impunity the sort of

12:36

excesses of executive authority invited

12:38

by too few written laws led to the

12:40

rebellion against King John and the

12:42

ceiling of the Magna Carta one of the

12:44

great advances in the rule of law and

12:46

history bears warning the too many the

12:49

too much and too much an accessible law

12:51

can lead to executive access as well

12:55

Caligula sought to protect his authority

12:58

by publishing the law a hand so small

13:01

and posted so high that no one could

13:04

really be sure what was and wasn't

13:05

forbidden no doubt

13:08

all the better to keep us on our toes

13:10

sorry in federal 62 more seriously

13:19

Madison warned that when laws become

13:20

just a paper blizzard citizens are left

13:22

unable to know what the law isn't to

13:24

conform their conduct to it it's an

13:27

irony of the law that either too much or

13:28

too little can impair Liberty our aim

13:31

here has to be for a golden mean and it

13:33

may be worth asking today if we've

13:35

strayed too far from it

13:37

ok beyond the law itself there are other

13:40

ironies of ironies here emanating from

13:43

our law schools target-rich environment

13:47

you say well let's be kind of the

13:50

professors in the room and just take one

13:51

example in our zeal for high academic

13:54

standards we have developed a dreary

13:57

bill of particulars every law school

13:59

must satisfy the win ABA accreditation

14:02

law schools must employ a full-time

14:04

librarian they're not a part-timer they

14:08

must provide extensive tenure guarantees

14:10

they invite trouble if their student

14:12

faculty ratio reaches 32 one out the

14:15

same ratio found many in public

14:17

procol schools keep in mind too that

14:20

under ABA standards adjunct professors

14:22

with actual practice experience includes

14:25

me here account only as one-fifth of an

14:28

instructor

14:32

maybe they're onto something after all

14:34

might be worth pausing to ask whether

14:39

commands like these contribute enough to

14:41

learning to justify the barriers to

14:44

entry and the limits on access to

14:46

justice that they impose a legal

14:49

education can cause students today two

14:51

hundred thousand dollars that's on top

14:54

of an equally swollen some for an

14:57

undergraduate degree yet another a VA

14:59

accreditation requirement in England

15:03

students can earn a law degree in three

15:05

years is under graduates or in one year

15:08

of study after college

15:09

all of which must be followed by

15:11

on-the-job training and none of this is

15:14

thought to be a threat to the rule of

15:15

law there one might wonder whether the

15:18

sort of expensive an extensive

15:20

homogeneity we demand is essential to

15:22

the rule of law here

15:25

alright so far I've visited ironies

15:28

where the law aims at one virtue and

15:31

risks a corresponding vice but it seems

15:34

to me that the laws most remarkable

15:36

irony today comes from precisely the

15:39

opposite direction of ice that hints at

15:41

virtues in the rule of law today our

15:45

court our culture positively buzzes with

15:48

cynicism about the law are shared

15:51

profession and project so many see law

15:54

is the work of robe hacks and shiny

15:57

suited shills judges who ruled by

16:00

personal policy preference lawyers who

16:03

seek to razzle-dazzle them on this view

16:07

the only rule of law is a will to power

16:09

baby in a dark moment you've fallen prey

16:13

to doubts along these lines yourself but

16:17

i wonder whether the laws greatest irony

16:20

might just be the hope obscured by the

16:22

cynics shadow

16:24

I wonder whether cynicism about the law

16:26

flourishes so freely only because for

16:29

all its blemishes the rule of law in our

16:31

society is so fundamentally successful

16:34

and sometimes it's hard to see a

16:37

wonderful like David Foster Wallace's

16:39

fish surrounded by water

16:43

yet somehow unable to appreciate its

16:46

existence were like Chesterton's

16:48

man-on-the-street who's asked out of the

16:51

blue

16:51

why he prefers civilization to barbarism

16:53

and who has a hard time stammering out a

16:56

reply because the very multiplicity of

16:58

proof which should make reply easy and

17:01

overwhelming makes it impossible now the

17:05

cynicism surrounding our project our

17:07

profession is easy enough to see when

17:09

Supreme Court justices try to defend

17:11

laws a discipline when they explain

17:13

their jobs interpreting legal texts when

17:17

they evoke and echo the traditional

17:19

federalist 78 conception of a good judge

17:22

their mocked often viciously personally

17:26

leading voices call them deceiving

17:29

warned that behind their a nine-page

17:32

facades lurk cruising partisans even law

17:36

professors hurry to the microphone to

17:38

express complete discussed and accuse

17:40

them of perjury and intellectual

17:42

security actual quotes everyone if this

17:47

bleak picture I've sketched were

17:49

inaccurate one if I believe the judges

17:52

and lawyers regularly acted as shoes and

17:54

hacks and hang up the road i turn my

17:57

license but even accounting for my

18:00

native optimism i just don't think

18:02

that's what a life in the law it's about

18:04

heart i doubt you do either as a working

18:08

lawyer I saw time and again the

18:11

creativity intelligence hard work

18:13

applied to a legal problem can make a

18:16

profound difference in a client's life I

18:19

saw judges injuries that while human and

18:21

imperfect strove to hear earnestly and

18:24

decide and partially I never felt my

18:27

arguments to court for political ones

18:29

the ones based on rules of procedure and

18:31

evidence president standard interpretive

18:34

techniques the prosaic but vital stuff

18:37

of a life in the law as a judge now 47

18:41

whatever years I see colleagues everyday

18:46

striving to enforce the Constitution the

18:48

statutes passed by Congress the

18:50

president's to bind us

18:52

the contracts the parties adopted

18:54

sometimes they do so with quiet

18:56

misgivings about the wisdom of the

18:58

regulation addition sometimes was

19:00

concerned about their complicity in a

19:03

doubtful statute but enforcing the law

19:05

all the same believers that ours is

19:08

essentially adjust legal order now

19:11

that's not to suggest that we lawyers

19:13

and judges bear no blame for ages

19:15

cynicism about the law take our self

19:19

adopted Model Rules of Professional

19:20

Conduct they explained that the duty of

19:24

diligence we lawyers or clients and i

19:26

quote does not require the use of

19:29

offensive tactics or preclude treating

19:35

people with courtesy and respect now

19:40

how's that for professional promise to

19:42

the public

19:43

I view is sort of an ethical commandment

19:46

as I tell my students that is a lawyer

19:48

you should do unto others before they

19:49

can do unto you

19:50

no doubt we have to look hard in the

19:56

mirror when our professions reflected

19:58

image and popular culture is no longer

19:59

Atticus Finch but Saul Goodman of course

20:06

we make our share of mistakes to as my

20:08

now teenage daughters gleefully remind

20:10

me

20:11

donning a robe does not make me any

20:13

smarter but the road does mean something

20:16

and not just that I can hide the coffee

20:18

stains on my shirt

20:20

it serves as a reminder of what's

20:22

expected of us what Burke called the

20:24

cold neutrality of an impartial judge it

20:28

serves to is a reminder of the

20:29

relatively modest station as judges are

20:32

meant to occupy a Democratic Society in

20:35

other places judges wear scarlet and

20:37

Irma here we're told to buy our own

20:40

robes and I can attest the standard

20:43

choir outfit at the local uniform supply

20:45

stores a really good deal

20:47

ours is a judiciary of honest black

20:52

polyester in defending laws of coherent

20:57

discipline now I don't mean to suggest

20:59

that every hard legal question as a

21:01

single right answer the Sun platonic for

21:04

absolute truth exists for every crazy

21:06

naughty statute or oiled regulation if

21:09

only you possess superhuman power to

21:11

discern it i don't know about you but I

21:14

haven't met many judges resemble some

21:15

sort of legal Hercules well maybe my old

21:19

boss fire and light but how many of us

21:22

are going to lead the NFL in Russia

21:24

when a lawyer claims absolute

21:27

metaphysical certainty about the meaning

21:29

of some chain of ungrammatical

21:31

prepositional phrases tacked onto the

21:34

end of a run-on sentence buried in some

21:37

sprawling statutory subsection I start

21:41

worrying for questions like those my

21:44

only gospel is skepticism I try not to

21:47

make a dog out of it but to admit the

21:50

disagreement does and will always exist

21:53

over hard and find questions of law like

21:55

that doesn't mean our disagreements are

21:57

matters of personal will of politics

21:59

rather than an honest effort of making

22:01

sense of the legal materials at hand the

22:05

very first case i wrote for the tenth

22:06

circuit to reach the united states

22:08

supreme court involved a close question

22:10

statutory construction and the court

22:12

split 54 Justice Breyer wrote to affirm

22:16

he was joined by justices Thomas

22:19

Ginsburg Alito and Sotomayor Chief

22:25

Justice Roberts descended and he was

22:27

joined by Justice Stevens Scalia and

22:29

Kennedy that's a lineup that the public

22:32

doesn't often hear about but it's the

22:34

sort of thing that happens quietly day

22:37

in and day out in courts throughout our

22:38

country as you know but the legal cynic

22:41

overlooks the vast majority of disputes

22:44

coming to our courts are ones in which

22:45

all judges agree on the outcome intense

22:48

focus on a few cases where we disagree

22:50

suffers from a serious selection effect

22:52

problem over ninety percent of the

22:54

decisions issued by my quarter unanimous

22:56

and that's pretty typical of the federal

22:58

appellate courts forty percent of the

23:01

Supreme Court's cases are unanimous to

23:03

even though they face the toughest

23:05

assignments and nine not three judges

23:07

have to vote in every single dispute in

23:10

fact the Supreme Court's rate of descent

23:12

has been largely stable for 70 years

23:15

you don't hear that this despite the

23:18

fact that back in 1945 eight of the nine

23:20

justices have been appointed by a single

23:22

president and today's sitting justices

23:25

were appointed by five different

23:26

presidents even in those few cases where

23:30

we do disagree the cynic also fails to

23:33

appreciate the nature of our

23:34

disagreement we lawyers and judges may

23:37

dispute which two

23:38

was legal analysis are most appropriate

23:39

for ascertaining a statute's meaning we

23:43

may disagree over the order priority we

23:46

should assign two competing tools and

23:48

the consonants with the Constitution we

23:50

may even disagree over the results are

23:52

agreed tools yield in particular cases

23:54

these disagreements sometimes produce

23:56

familiar lineups but sometimes not

23:58

consider for example the debates between

24:01

Justice Scalia and Thomas over the role

24:03

of the rule entity or their

24:05

disagreements about the degree of

24:07

deference to President or some of the

24:09

debates you've heard today between and

24:11

among textless original lists these

24:15

debates are hugely consequential final

24:17

but their disputes of legal judgment not

24:20

disputes about politics or personal will

24:22

in the hardest cases as well many

24:26

constraints narrow the realm of

24:27

admissible dispute closed factual

24:30

records and adversarial process for

24:32

parties not courts usually determined

24:33

issues for decision standards of review

24:36

the command deference to finders of fact

24:38

the rules requiring us appellate George

24:40

judges to operate and collegial panels

24:42

where we listen learn from one another

24:44

the discipline of writing reason giving

24:46

opinions and the possibility of further

24:48

review to be sure these constraints

24:51

sometimes point in different directions

24:53

i'm not advocating a single right answer

24:55

to every problem but that shouldn't

24:57

obscure how those tools those

24:59

constraints often served to limit the

25:02

latitude available to all judges even

25:05

the cynics imagine judge would like

25:06

nothing more than imposes policy

25:08

preferences on everyone else

25:10

and on top of all that what today

25:12

appears to be a hard case tomorrow

25:14

becomes an easy one and accretion to

25:16

precedent as a new constraint on the

25:18

range of legally available options in

25:20

future cases now maybe maybe i do

25:24

exaggerate the cynicism that seems to

25:27

pervade today or maybe the cynicism i

25:29

see is real but endemic to every place

25:31

and every time and it seems something

25:33

fresh

25:34

only because this is our place in our

25:36

time after all lawyers and judges have

25:39

never been much loved Shakespeare wrote

25:42

the history of King Henry the sixth and

25:44

three parts in all those three plays

25:47

there's only a single joke

25:49

Jack cadence followers come to London

25:52

intent on rebellion and they offer their

25:55

first rallying cry let's kill all the

25:58

lawyers as in fact that he pretty much

26:01

did but but maybe just maybe the

26:06

cynicism about the rule of law whatever

26:08

the place whatever the time is its

26:10

greatest irony

26:12

maybe the cynicism is so apparent in our

26:14

society only because the rule of law

26:16

here for all its problems is so

26:19

successful

26:20

after all who can make so much fun of

26:23

the law without being very sure the law

26:25

makes it safe to do so don't our friends

26:30

our neighbors and we ourselves expect

26:33

and demand not just hope for justice

26:35

based on the rule of law our country

26:39

today shoulders an enormous burden the

26:43

most powerful nation on earth the most

26:45

obvious example of people struggling to

26:48

govern itself under the rule of law our

26:51

mistakes and missteps halted by those

26:54

who do not wish as well they're easy

26:57

enough to see even by those who do

26:59

neither should we try to shuffle our

27:01

problems under the rug

27:03

we have far too many to ignore today

27:06

the fact is the law can be a messy human

27:11

business a disappointment to those

27:13

seeking truth and some absolute sense

27:15

expecting more of the diviner oh except

27:18

for those of us wearing the robes and

27:21

it's easy enough to spot examples where

27:23

the laws ironies are truly better but it

27:26

seems to me that we shouldn't well so

27:29

much on the better that we never savor

27:31

the sweet it is after all our shared

27:34

profession to which we devoted our

27:36

professional lives the law that permits

27:38

us to resolve their disputes without

27:40

resort to violence to organize our

27:42

affairs with some measure of confidence

27:44

is through the careful application of

27:47

the laws existing premises were able to

27:49

adapt and generate new solutions to

27:51

changing social coordination problems as

27:53

they emerge and when done well the law

27:56

permits us to achieve all this in a

27:58

deliberative non-discriminatory and

28:00

transparent

28:00

way those are no small things here then

28:05

is the irony I'd like to leave you with

28:07

tonight if sometimes the cynic and all

28:10

of us fails to see our nation successes

28:14

when it comes to the rule of law

28:16

maybe it's because we're like David

28:17

Foster Wallace's fish was oblivious to

28:20

life-giving water in which it swims

28:22

maybe we overlooked our nation's success

28:25

living under the rule of law only

28:28

because for all our faults that success

28:31

is so obvious it's sometimes hard to see

28:34

thank you

 

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