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| Arguing for a Judge Today, and Before Him Tomorrow | Arguing for a Judge Today, and Before Him Tomorrow |
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| Neal K. Katyal was for a time the top lawyer in the Obama administration. As acting solicitor general, he represented the government before the Supreme Court. He is no conservative, and says he is disappointed that the latest nominee to the court is from the White House of President Trump. | Neal K. Katyal was for a time the top lawyer in the Obama administration. As acting solicitor general, he represented the government before the Supreme Court. He is no conservative, and says he is disappointed that the latest nominee to the court is from the White House of President Trump. |
| Yet in the opinion pages of The New York Times on Tuesday, Katyal made a forceful case for Trump’s pick to the high court, Judge Neil Gorsuch. Katyal called the nominee a man of principle who will uphold the rule of law, and “bring a sense of fairness and decency to the job, and a temperament that suits the nation’s highest court.” | Yet in the opinion pages of The New York Times on Tuesday, Katyal made a forceful case for Trump’s pick to the high court, Judge Neil Gorsuch. Katyal called the nominee a man of principle who will uphold the rule of law, and “bring a sense of fairness and decency to the job, and a temperament that suits the nation’s highest court.” |
| The author says he knows this because he has seen Gorsuch in action, both in court and through a federal rules committee on which they both serve. What Katyal did not mention — and the Op-Ed page did not disclose in his bio — is that he has cases pending before the Supreme Court. | The author says he knows this because he has seen Gorsuch in action, both in court and through a federal rules committee on which they both serve. What Katyal did not mention — and the Op-Ed page did not disclose in his bio — is that he has cases pending before the Supreme Court. |
| Katyal was identified as a former solicitor general, a law professor at Georgetown University and a private litigator at the law firm Hogan Lovells. But in that last role he represents the giant drug manufacturer Bristol-Myers Squibb, Indian tribes and numerous other clients with cases before the court. | Katyal was identified as a former solicitor general, a law professor at Georgetown University and a private litigator at the law firm Hogan Lovells. But in that last role he represents the giant drug manufacturer Bristol-Myers Squibb, Indian tribes and numerous other clients with cases before the court. |
| Some readers would have liked to know more about Katyal’s background. | Some readers would have liked to know more about Katyal’s background. |
| Here’s one email from Mithra Busler of Atlantic Highlands, N.J. | Here’s one email from Mithra Busler of Atlantic Highlands, N.J. |
| I took this concern to both Op-Ed page and to Katyal himself. | I took this concern to both Op-Ed page and to Katyal himself. |
| Jim Dao, the Op-Ed editor, said the editors had not been aware of Katyal’s cases before the court. Writers are required to disclose potential conflicts, he said, but the process got rushed in this case. “Editors do try to ask writers directly,” he said. “On tight deadlines — and the Katyal piece was done on tight deadline — the question doesn’t always get asked. So I don’t blame the writer or the editor in this case.” | Jim Dao, the Op-Ed editor, said the editors had not been aware of Katyal’s cases before the court. Writers are required to disclose potential conflicts, he said, but the process got rushed in this case. “Editors do try to ask writers directly,” he said. “On tight deadlines — and the Katyal piece was done on tight deadline — the question doesn’t always get asked. So I don’t blame the writer or the editor in this case.” |
| When I reached out to Katyal, he said he had not received such a disclosure request and had not had a conversation about potential conflicts. He also thought it was obvious to The Times that as a lawyer whose practice often brings him to the Supreme Court, he would have a case before it. | When I reached out to Katyal, he said he had not received such a disclosure request and had not had a conversation about potential conflicts. He also thought it was obvious to The Times that as a lawyer whose practice often brings him to the Supreme Court, he would have a case before it. |
| More critically, Katyal said, it is common for Supreme Court lawyers not to mention litigation they have pending before the court when writing an opinion piece about a nominee or speaking to a reporter. Here’s his response to me in full: | More critically, Katyal said, it is common for Supreme Court lawyers not to mention litigation they have pending before the court when writing an opinion piece about a nominee or speaking to a reporter. Here’s his response to me in full: |
| The problem is that the op-ed did not note that Katyal is among the elite lawyers who argue before the high court. 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. | |
| I’m not suggesting Katyal is currying favor with a man who is almost certainly going to be on the court. I seriously doubt that he is. Plus, given the range of his clients, some might benefit and others not if Gorsuch is even on the bench when their cases come up. But The Times opens itself up to that criticism by failing to simply tell the readers more about who he is. | I’m not suggesting Katyal is currying favor with a man who is almost certainly going to be on the court. I seriously doubt that he is. Plus, given the range of his clients, some might benefit and others not if Gorsuch is even on the bench when their cases come up. But The Times opens itself up to that criticism by failing to simply tell the readers more about who he is. |
| Katyal’s piece falls into an appealing category for an op-ed editor: a partisan who breaks ranks to support the opposition. Whenever that happens, the author of the piece is bound to endure scrutiny by those who feel betrayed. Shouldn’t The Times err on the side of disclosure? It doesn’t need to be in heavy-handed language that implies a grave conflict. | Katyal’s piece falls into an appealing category for an op-ed editor: a partisan who breaks ranks to support the opposition. Whenever that happens, the author of the piece is bound to endure scrutiny by those who feel betrayed. Shouldn’t The Times err on the side of disclosure? It doesn’t need to be in heavy-handed language that implies a grave conflict. |
| 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. | 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. |
| Updated 7:30 a.m., February 4, to clarify that it was The Times, not Katyal, that failed to disclose his litigating experience. I intended from the start to convey that this was The Times’s failure and not Katyal’s. I regret the ambiguity surrounding the party responsible for failing to disclose Katyal’s experience and any misunderstanding caused by it. |