It’s probably naive to think that there could be a nuanced conversation about Judge Neil Gorsuch’s citation of sources in his 2006 book, “The Future of Assisted Suicide and Euthanasia.” But that’s precisely what we need.
There’s no doubt that in at least one extended passage, Gorsuch, President Donald Trump’s nominee for the U.S. Supreme Court, copied wording from an article in the Indiana Law Journal with only trivial changes and without citing the article. There’s even a footnote that’s replicated verbatim from the article, down to the exact same use of ellipses in citing a pediatrics textbook. In academic settings, this would be considered plagiarism, albeit of a fairly minor kind. And the citation of the textbook — a primary source — while failing to cite the article — a secondary source — implies knowing borrowing, rather than an accident.
Yet it’s also true, as Gorsuch’s defenders are insisting, that the unattributed borrowing seems to consist only of the presentation of rather dry facts — and not any argument or original idea borrowed without attribution, which would be heavy-duty plagiarism. The defenders are also right that this sort of paraphrase is actually fairly common in judicial opinions and even some legal academic writing. It’s poor form not to cite a secondary source from which you’ve mined primary sources. But it’s also not the end of the world, or a profound violation of the sort that would call Gorsuch’s integrity or judgment into question.
BuzzFeed and Politico deserve credit for uncovering the story. I’d like to know how the passages were found, however. My strong suspicion is that someone ran the entire text of Gorsuch’s book — and no doubt all his published writings — through some kind of anti-plagiarism software. There’s no way anyone but the author of the Indiana law review article, Abigail Lawlis Kuzma, could have recognized the detailed description of the blocked esophagus of a baby referred to by the courts as Infant Doe as lifted from the article.
And to be frank, I doubt even Kuzma would have recognized the exact language, which wasn’t especially distinctive. In support of this suspicion, Kuzma, who works for the Indiana attorney general’s office and once was a staffer for moderate Republican Indiana Senator Richard Lugar, has said she doesn’t think her work was plagiarized.
It’s fair game to try to catch Gorsuch in plagiarism, of course. And although the catch is fairly minor, it is indeed a catch. Politico’s article juxtaposes page 192 of Gorsuch’s book with page 378 of Kuzma’s article, and they are almost identical.
The most telling proof of direct copying is in the BuzzFeed article. It’s footnote 49 in Chapter 10 of Gorsuch’s book, and it corresponds exactly to Kuzma’s footnote 14. It reads, in both sources:
“Virtually all individuals with Down’s syndrome have some degree of developmental retardation. The range of IQ scores has been wide, but most individuals are trainable by adulthood. Social skills usually are closer to the normal range than performance abilities. . . . The degree of mental retardation is quite variable, but most children learn to walk and develop some communication skills; there is a steady progress of development, at a slower pace than usual . . . 1/8and c3/8hildren reared at home have higher IQs than those reared in institutions.” A. Rudolph, Pediatrics 244 (17th ed. 1983).
When I say exactly, I mean exactly. There are two ellipses in the Kuzma footnote, one using four periods to mark the end of a sentence followed by a gap, and another using three periods followed by square brackets to mark continuation into a new sentence. They’re reproduced identically in Gorsuch’s footnote.
This replication of the ellipses is overwhelming evidence that Gorsuch didn’t just use the Kuzma article to track down primary sources, such as the unpublished Indiana judicial opinion involving Infant Doe. He cut-and-pasted the entire footnote, ellipses and all. Further proof that he didn’t go back to the primary source is that there had been several editions of the Rudolph pediatrics textbook since the 1983 17th edition that Kuzma cited in 1984. Gorsuch didn’t bother to track those down.
To be sure, Gorsuch cited the primary document: the pediatrics textbook. In that sense, he engaged in the not unknown legal practice of using a secondary source to find primary sources.
But he didn’t cite the secondary source at all. That frankly doesn’t seem like an accident. According to Politico, Gorsuch did the same thing on two other occasions. That’s strong evidence of a pattern.
It’s definitely not a good thing to omit references to a secondary source that you use to get the primary sources. Amassing such primary sources is difficult, time-consuming work. It’s often thankless — which is exactly why the secondary source should be thanked in a footnote.
At the same time, as plagiarism goes, these instances are minor, and arguably insignificant. There would’ve been no intellectual value added by Gorsuch substantially rewriting Kuzma’s description of Infant Doe’s medical condition. And Gorsuch had little to gain by omitting the citation, except maybe by creating the perception that he’d done more compilation of original sources than he in fact did.
I can hear the haters on all sides now, with conservatives claiming Gorsuch didn’t plagiarize at all, and liberals telling me that I’m condoning plagiarism.
I can’t say it any more clearly this: He plagiarized, but the plagiarism was minor.
It deserves no more punishment than the embarrassment attendant on its revelation. It doesn’t disqualify him from serving on the Supreme Court. It doesn’t impugn Gorsuch’s character. He’s not perfect, it turns out. Know what? No one is.
Feldman is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem — and What We Should Do About It.”