President Trump has selected federal appeals court Judge Neil Gorsuch to fill a Supreme Court seat that ought to have gone to Merrick Garland. Now, some people, including Neal Katyal, who served under President Barack Obama as acting Solicitor General, have said glowing things about Mr. Gorsuch. But I have some concerns.
As a young lawyer, Gorsuch held three prestigious clerkships. He clerked for Supreme Court Justices Byron White and Anthony Kennedy. He also clerked for David Sentelle on the U.S. Court of Appeals for the D.C. Circuit. When Gorsuch spoke during the announcement of his nomination, he went out of his way to praise these three mentors, and he praised Sentelle in particular who was present for the ceremony.
“If you’ve ever met Judge David Sentelle, you’ll know just how lucky I was to land a clerkship with him right out of school,” Gorsuch said, nodding in Sentelle’s direction.
Sentelle, if you recall, had his confirmation to the DC Circuit held up for months over his refusal to disassociate himself from “from private clubs that did not admit blacks or women.” Maybe you remember how he used his position to overturn the convictions of Oliver North and John Poindexter at the tail end of the Iran-Contra Affair. You could even remember how he upheld (and was subsequently overruled by the Supreme Court) President George W. Bush’s suspension of habeas corpus in the Military Commissions Act of 2006.
Or, perhaps, like me, his name is etched in your memory because of the conspiracy he engaged in with Sens. Jesse Helms and Lauch Faircloth of North Carolina to fire Whitewater investigator Robert B. Fiske Jr. and replace him with Kenneth Starr.
I’ll go over that conspiracy shortly, but I want to dwell on Sentelle’s connections to Jesse Helms for a moment. Hopefully, you don’t need to remember Helms’s notoriously racist White Hands 1990 political advertisement to know that he was a reactionary and bigoted hold out against the desegregation of the South. He was bad enough that David Broder (usually the paragon of civility) took the opportunity of his death to excoriate him for “his willingness to pick at the scab of the great wound of American history, the legacy of slavery and segregation, and to inflame racial resentment against African Americans.”
That Sentelle and Helms were political fellow travelers and birds of a feather should be seen in that context, and it matters that Sentelle expressed classically white supremacist catch phrases, including in a 1981 essay on country music he wrote for a book titled Why the South Will Survive. “The main appeal of the music of the South,” Sentelle wrote, “is found among…the long-historied, little-loved descendants of the people who built half the civilized world – the Anglo-Saxons.”
When a vacancy opened up on the DC Circuit in 1987, Jesse Helms convinced the Reagan administration to give the seat to Sentelle.
In 1994, these three gentlemen (Helms, Faircloth and Sentelle) sat down to lunch and plotted the ouster of the president of the United States. The charge was compelling enough that Helms took the trouble to deny it in his 2005 autobiography: Here’s Where I Stand: A Memoir.
In 1993, when the Whitewater scandal heated up enough that Attorney General Janet Reno felt the need to appoint a special counsel to investigate it, she chose Robert B. Fiske Jr., a Republican attorney. At the time, the appointment was praised by Senate Minority Leader Bob Dole. However, in 1994, “Congress passed legislation that gave a panel of federal judges the authority to appoint an independent counsel with broad powers to conduct nonpartisan inquiries.”
On July 1st, 1994, Reno asked the judges on this panel to keep Fiske on the job; he was in the middle of his Whitewater investigation. The following day, Sen. Lauch Faircloth, a conservative Republican from North Carolina, attacked Reno’s request, claiming that Fiske’s re-appointment would be “highly improper.” Right-wing organizations were infuriated by Fiske’s recent conclusion that Vincent Foster had indeed committed suicide. Faircloth argued that Fiske’s work was tainted by conflicts of interest and that the panel should appoint “a new, truly independent counsel that will enjoy the confidence of those who seek truth and justice, regardless of party.”
The conspiracy then proceeded in two steps. The first happened two weeks later when:
…Lauch Faircloth and his fellow Republican senator from North Carolina, Jesse Helms, joined the presiding judge on the Independent Counsel Panel for a private luncheon. Judge David Sentelle, also from North Carolina, had been appointed to the U.S. Court of Appeals by President Reagan at Jesse Helms’ request.
Together, an August 12th, 1994 Howard Schneider article in the Washington Post and an August 13th David Johnston article in the New York Times explain what happened.
Sentelle was the presiding judge on the three-judge panel that would decide whether to retain Fiske or appoint someone else to lead the Whitewater investigation. Faircloth (quite visibly) and Helms (more quietly) had led the charge in creating this three-judge panel and now wanted the Vince Foster assassination-skeptic Fiske replaced with Kenneth Starr.
Judge Sentelle and Senator Faircloth today acknowledged the lunch, which was first reported by The Washington Post. Also in attendance was Jesse Helms, the other Senator from North Carolina, who is a mutual friend and a Republican. Judge Sentelle has long been involved in Republican politics in the state…
…Some senators expressed shock at the news that Judge David B. Sentelle, the head of the three-judge appellate panel that named Mr. Starr, had lunch on July 14 with Senator Lauch Faircloth, a conservative Republican of North Carolina, while the panel was still considering its choice. Mr. Faircloth was a leader of efforts to oust Robert B. Fiske Jr. as the Whitewater prosecutor.
The original Washington Post story had focused only on the connection between Sen. Faircloth and Sentelle because their source had witnessed them together (without Helms) on the Capitol tram.
Faircloth refused to be interviewed about the meeting, except to say through aide John Preyer that “there was no discussion involving the court or the Senate and there is nothing more to comment on.”
However, an individual who saw Faircloth and Sentelle board a tram underneath the Capitol complex said the two were involved in an “animated” discussion in which Faircloth did most of the talking. The individual spoke on condition of anonymity and said he called The Washington Post to report the discussion between Faircloth and Sentelle because he believed it was inappropriate.
In case it isn’t clear now, twenty-three years later, this meeting was inappropriate regardless of what they actually discussed.
A discussion of Fiske or the independent counsel decision would have been improper between a judge and a senator with a political interest in the outcome of the case, said New York University law professor Stephen Gillers. Democrats said Sentelle’s and Faircloth’s very presence together at such a pivotal time in the panel’s decision-making raises questions about last week’s action in replacing Fiske.
“The whole point of giving it to judges is that they will be immune from political influence,” said Stephen Bundy, a law professor at the University of California at Berkeley. “Why else would they feel compelled to review Reno’s judgment except that she is presumed to be politically influenced and he is not? Then we find this guy consorting with the leader of the opposing political faction… . At best, it appears to be improper.”
The next step in the conspiracy was predictable:
A few weeks after these three Republicans had lunch, the Independent Counsel Panel fired Fiske and named Kenneth W. Starr to replace him. Judge Sentelle’s decision to remove Fiske was backed by the other conservative Republican on the three-man panel, Judge Joseph T. Sneed. The move took the Clinton administration completely by surprise.
When Sentelle was subsequently questioned about his ethics, his defense was charming:
“Senators Helms and Faircloth and I shared stories of old friends in North Carolina,” he said. “The lengthiest discussion concerned prostate difficulties, including radiation and surgery and how our generation of men were having to overcome the embarrassment of seeing female physicians for that sort of problem.”
Much later, when Helms was defending his actions in this episode, he argued that conservatives are too disunited to engage in vast conspiracies. But it soon became clear that Kenneth Starr would make it his mission to destroy Bill Clinton by any means available. He almost succeeded.
In July , Starr’s office conceded that Vincent Foster had committed suicide, a blow to conspiracy theorists on the right. At about the same time, FBI agents employed by Starr began to investigate Bill Clinton’s sex life in Arkansas – a subject irrelevant to the independent counsel’s official mandate but of enormous interest to the attorneys trying to establish a pattern of sexist behavior in Paula Jones’ civil suit. Starr’s FBI agents even hunted for information about Clinton and Paula Jones. The president of the United States was going to be interrogated about his sexual history during the Jones case. Her civil trial would provide ample opportunity to embarrass the president and confront him with any lies about his sex life.
You know the rest.
I acknowledge that some of the connections here are stretched. The shared racism of Sentelle and Helms isn’t clearly and necessarily connected to their shared antipathy for Bill Clinton. Neither of those flaws bear specifically on their ethical lapses. And, whatever their shortcomings, Judge Gorsuch only clerked for Sentelle and isn’t responsible for his belief system or actions.
Yet, it was Gorsuch who said “If you’ve ever met Judge David Sentelle, you’ll know just how lucky I was to land a clerkship with him right out of school.”
I remember when Trent Lott lost his job for praising Strom Thurmond on the occasion of his 100th birthday. So, while it is expected that people will occasionally praise rotten people when it’s socially appropriate to do so, sometimes it is possible to cross the line.
David Sentelle’s political and judicial careers should not be remembered fondly, and praising him is a way of giving him a pass or even endorsing his behavior.
More than anything, if Gorsuch is anything like Helms and Sentelle, he’s more likely to be a warrior in the service of revanchist conservative causes than “help to restore confidence in the rule of law” as Neal Kaytal promises us he will do.
If I were a Democratic senator, I wouldn’t be willing to take that risk.