A misguided attack on Neal Katyal for his suppot of Neil Gorsuch

Neal Katyal, former Acting Solicitor General of the United States

Last week, Neal Katyal joined the legion of legal luminaries, left and right, praising Judge Neil Gorsuch’s qualifications to replace the late justice Antonin Scalia on the Supreme Court. Katyal’s New York Ttimes op-ed, “Why Liberals Should Back Neil Gorsuch,” was notable, in no small part, because Katyal served as acting solicitor general in the Obama administration and has often been mentioned as a possible Democratic Supreme Court nominee. A partner at Hogan Lovells and Georgetown law professor, Katyal successfully challenged Bush administration War on Terror policies in Hamdan v. Rumsfeld and is currently representing the State of Hawaii in current challenges to the Trump administration’s controversial immigration executive order.

Soon after Katyal’s op-ed was published, the folks at ThinkProgress attacked Katyal, and the Times, for failing to note that Katyal represents clients including (gasp) corporations before the Supreme Court. Although the op-ed’s byline noted Katyal’s work at Hogan Lovells, it did not specifically mention his work on current Supreme Court cases. The piece went on to suggest that Katyal is supporting Gorsuch because he believes a Justice Gorsuch would support the positions advocated by his corporate clients. It’s a scurrilous insinuation.

One day later, the substance of the ThinkProgress criticism was picked up by the Times’s public editor, Liz Spayd, who received letters from readers largely repeating the ThinkProgress complaints. Yet, as Spayd noted, the failure to note Katyal’s current Supreme Court work was the Times’s, not Katyal’s.

Supreme Court watchers are well aware of Katyal’s work on behalf of various clients in the Supreme Court — clients ranging from private corporations to Indian tribes to Guantanamo detainees and government whistleblowers — and I suspect most Times readers understand that partners at major law firms often have corporate clients.  So was the omission significant? Wrote Spayd:

Katyal, in his original submission to Op-Ed editors, disclosed that he is a highly experienced litigator before the Supreme Court. The editors did not disclose that to readers. The Times editors’ lack of disclosure may leave Katyal open to unwarranted criticism, not only from readers but from others looking to challenge his motives.

Spayd concluded:

I’m not suggesting that The Times should have listed every case Katyal has before the court. But at minimum, readers in this case deserve to know that he is a Supreme Court litigator with cases before the court. Let the readers decide if that matters, or indeed whether it might even enhance the author’s expertise.

Interestingly enough, this has not been the Times’s position in the past. In 2009, for example, noted Supreme Court litigator Tom Goldstein, founder of SCOTUSBlog, wrote a Times op-ed defending Supreme Court nominee Sonia Sotomayor. Goldstein, like Katyal, regularly argues in the Supreme Court. Yet his byline simply read “Tom Goldstein, a founder of the Scotusblog Web site, is a lawyer and a lecturer at Stanford and Harvard Law Schools” — and I don’t recall any complaints from pundits or progressive groups that a lack of more complete disclosure was problematic.

Similarly, in 2010, when the Times reported on former solicitors general endorsing the nomination of Elena Kagan, there was no mention that some of them continued to represent corporate clients before the court — and once again I am unaware of any complaints. Op-eds by Supreme Court practitioners supporting various Supreme Court nominees in other newspapers likewise rarely note the authors’ representation of specific clients with pending cases.

While such disclosure may be desirable, it seems to me that intelligent readers can be expected to recognize that Supreme Court litigators have cases before the Supreme Court, and that this will often involve paying clients.

There may well be Supreme Court litigators who would endorse a Supreme Court nominee in the hope that it would help a specific client, but Katyal would not be among them. And even if I were wrong in my assessment of Katyal’s character, I am confident he recognizes that a Supreme Court nominee who might help one of his clients in one case could be detrimental to a different client’s position in another. As someone who represents a wide range of clients with a wide range of interests, Katyal’s interest is in having thoughtful, independent jurists that are open to persuasion, not seeing a specific nominee confirmed to help with a specific case.

Jonathan Adler9Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation)