From Clerk to Chief: Reflections with Judge Timothy M. Tymkovich

In this episode of Tales from the 10th, host Erin Gust interviews her former boss, Judge Timothy M. Tymkovich, about his life, career, and more than two decades on the U.S. Court of Appeals for the 10th Circuit. Judge Tymkovich reflects on his Colorado roots, his early influences, and his path from the Attorney General’s Office to the federal bench. He shares insights into his time as Chief Judge, the challenges of leading during the pandemic and the McGirt decision, and his service on the Foreign Intelligence Surveillance Court of Review.
The conversation also explores his friendship with Justice Neil Gorsuch, the collegial culture of the 10th Circuit, and the court’s significant role in shaping areas like First Amendment, Indian law, and environmental law. Judge Tymkovich discusses memorable cases such as Hobby Lobby, 303 Creative, and Bishop v. Utah, as well as his dedication to mentoring clerks and supporting judicial education.
The episode closes with reflections on the judiciary’s vital role in maintaining constitutional balance, his optimism for the future of the republic, and personal stories from his travels to Ukraine and Israel.

Transcript

TMT Interview 10-9-2025

[00:00:00] 

Erin Gust: Hello and welcome to Tales from the 10th, a podcast about the rich history, culture, and contributions of the 10th Circuit, brought to you by the US Court of Appeals for the 10th Circuit and the 10th Circuit Historical Society. I'm your co-host, Erin Gust.

Laila Kassis: I'm your co-host, Laila Kassis, 

Tina Howell: and I'm your producer, Tina Howell.

Erin Gust: Hello everyone and welcome to Tales from the 10th. This is your host, Erin Gust. Today I'm joined by my former boss, Judge Timothy M. Tymkovich. This interview is being conducted in October 2025 from the Byron White United States Courthouse. I'm thrilled to have you on the show, Judge Tymkovich.

Judge Tymkovich: Thank you, and I'm glad to be here. [00:01:00] 

Erin Gust: I'd like to start by talking about your early career. Tell us about your background and how you decided to pursue a career in the law. 

Judge Tymkovich: I'm a third generation Coloradan, and so I'm glad to still be here after 60 plus years. I was born and raised in the Denver area, and I have to say that from an early, age, I probably took eighth grade civics, and it stuck with me.

And I became interested in, government and public policy in high school and really had a very influential senior high school year history professor that, really piqued my interest in government civics and public policy. From high school I went down to Colorado College in Colorado Springs, a private liberal arts school of about 2000 students.

I majored in political science, um, naturally [00:02:00] and, during the course of my collegiate education, I was involved in some activities like the college honor council, other political science department activities. I had some really interesting classmates, one of whom is Diana DeGette that became a congresswoman from Denver for the last 30 years, and another classmate that became president of the Colorado, state senate.

So, my class had a really engaging and interesting, set of classmates and I think we reinforced each other. I decided to go to law school based on that experience, and I went straight through from college to the University of Colorado School of Law, entering in, 1979 and graduated in 1982. 

Erin Gust: What did you do when you graduated from law school?

Judge Tymkovich: Well, I'm one of those that enjoyed law school quite a bit. I was, number two in the law [00:03:00] review, and I enjoyed writing and research. I published an article and for the law review. My, third year one of my best friends was the editor in chief, John Paddock, who, uh, actually became a LA later became a law partner of mine when I started my own firm in the late 1990s. So, I had, you know, kind of a, a writing and research background interest. I had, a wonderful constitutional law professor up at CU, uh, Professor Robert Nagle, who really had a national footprint as a respected constitutional law scholar and theoretician. He helped me, found a chapter of the Federalist Society, which was a new legal organization, that began around that time.

But after, as I was looking for what to do next, I had been a summer associate, at a really interesting boutique litigation firm in Denver. But I decided to take a fling at getting a judicial clerkship. So, I applied [00:04:00] to, the justices on the Colorado Supreme Court and was lucky enough to get interviewed and hired by Justice William H. Erickson. Who was one of the more senior members of the court at that time. He later retained Chief Justice of the court during my one-year tenure with him, which was 1982 to 1983.

Erin Gust: Could you tell us a little bit more about starting your own firm? 

Judge Tymkovich: Wow. We'd have to fast forward a lot of years, you know, before I get to that, I would have to say I've been really fortunate to have, exposure to different parts of both private practice and public law. I started my, um, private practice career at David Graham and Stubbs here in Denver, and I practiced both in the Denver office and they had a nascent branch office in Washington dc which they started in 1986, and that was really unusual and groundbreaking for a [00:05:00] outside of DC firm or New York firm to have a branch office going the other way. So, it was one of the first, firms that opened a DC office that wasn't located, sort of east coast, in that space.

So, I worked at the, DC office for three years during the course of my tenure with, David Graham and Stubbs, I became involved, in Gale Norton's, attorney General campaign in 1989. And she was, and probably elected, so I joined her at the Colorado Attorney General's office as Solicitor General. I believed in term limits for government officials and like me, and I thought I was going to work in the A.G.’s office for a year and then go back to private practice.

But it was so fun and rewarding and I, so enjoyed the mission that I stayed there for six years. Which gets me to, starting my own firm. I left, the attorney General's office and joined a group of mostly former lawyers from Davis, Graham and Stubbs and other, larger firms that [00:06:00] wanted a more independent and focus practice.

So, I joined, some of my colleagues and created a firm that became known as Hale, Hackstaff, Tymkovich. And I practiced with that firm until I was, confirmed for the court in 2003. 

Erin Gust: You mentioned, so you served as Solicitor General of Colorado. What were some of the highlights of that role?

Judge Tymkovich: Yeah, I came on as Solicitor General in 1991, and at the time, state Attorney General's office were kind of sleepy, little outposts nationally, and they would basically do the bidding of the governor. Well, Colorado always had a different statutory and constitutional scheme. The Attorney General was an independent, separately elected state official, and she had her own portfolio and ability to handle cases and projects outside just the day-to-day representation of [00:07:00] the state executive branch. Attorney General Norton embraced that role. She was a really groundbreaking young. Attorney General. And at the time there were several around the country in California, Virginia, Alabama, and the model that she created really, was a much more visible and aggressive, public law office.

I came in a solicitor general, so I was essentially her chief, legal counselor. And so, I was very much involved in how we handled, the litigation, what cases, we got involved with nationally. We began joining amicus briefs on national issues of importance in both the federal circuit courts and primarily the US Supreme Court.

So, for me, coming into that office, it was really an opportunity to build, a model of an attorney general's office that was much more visible, much more active, much more attuned to the public interest, which is much more [00:08:00] interested in helping influence and shape, lead the development of the law.

And I think we were really successful at that. And if you kind of look back over the last 35 years nationally, that model has taken over every State Attorney general's office. They're, all doing it now. State attorney generals have become, very influential in the federal courts and the US Supreme Court.

And, you know, it all kind of started back with just a few of us doing that in the early 1990s.

Erin Gust: Moving to your time on the bench, why did you decide to become a judge? 

Judge Tymkovich: Well, as I mentioned, I clerked for a justice, a judge right out of law school and had a, just a tremendous experience. Justice Erickson was one of the top lawyers of his era and was a fantastic Supreme Court justice. The way he [00:09:00] approached the case is the way he, his relationship with me, his dedication to the law, he was president of the American Bar Association, involved in every major national legal organization.

That was very inspirational to me to see what somebody could do, both as a former private practitioner and then as a judge in a state court. So, I guess it was always in the back of my mind that that was something that I enjoyed and had an aptitude towards. But as every federal judge will tell you, it's a matter of luck and right time, right place, and you just really can't script it out.

For me, I was lucky enough to have an opportunity to be interviewed for this position in 2001 and there happened to be a vacancy and the stars aligned for me and, I felt it was a good time for me to come on the court. I was in my mid-forties. I had accomplished [00:10:00] a lot in the private sector, but I was very interested in, trying my hand in the public sector in a judicial capacity.

My practice included a lot of appellate work, so both as solicitor general, and as a private practitioner. I had two cases of the US Supreme Court, countless cases in the Colorado Court of Appeals and Supreme Court, a lot of 10th Circuit cases. So, I really felt I had a skill set that was a natural for that and was interested in the vacancy and was lucky enough to get the nomination by President George W. Bush and, confirmed later. 

Erin Gust: Were you concerned with the isolation from lawyers that comes with serving as an appellate judge? 

Judge Tymkovich: A little bit. Uh, I saw that in the Colorado Supreme Court and what I learned there was, isolation is a bit of a matter of choice. Like I said, Justice Erickson was, [00:11:00] involved nationally in all these organizations and was on the road and was a public figure, went to law schools and wrote law review articles.

Didn't look very isolating for him. And that was the model that, attracted me. Of course, you can sit in your office and be a hermit and that's a choice too. I did worry about that in the back of my mind because it does change your relationship with the legal community. The types of activities I did with other lawyers became more limited.

My circle of lawyer friends that I was close enough to that I felt I would recuse became smaller and smaller and smaller. So, there is that aspect of it. But again, there's ways to avoid that. I've been a member of the Doyle ends of court for, um, 20 plus years almost since I came on the court.

I've been involved in a lot of national organizations and federal judicial projects, that get me out and about and give me some variation from the day job of deciding cases and writing opinions. [00:12:00] 

Erin Gust: What was your confirmation process like? 

Judge Tymkovich: Well, every judge has a confirmation story. I don't think mine's particularly unusual or, interesting.

I was nominated in 2001, and this was May of 2001. It was before nine 11, and President Bush at the time was literally calling every potential nominee personally and asking them if he or she wanted the job. So, I was sitting in my law office one day talking to a client and the secretary came in and said, President Bush is holding, you know, basically you're going to take this call.

I was on the call with another, with a client, and so I had that once in a lifetime opportunity to say, I need to drop this call because the presidents on the other line, and we had a very pleasant, conversation, and he was obviously a gentleman and, really a people person. But [00:13:00] the, morning that he called me was the day that Senator Jim Jeffords from New Hampshire had decided to switch from his Republican affiliation to an independent.

And what that meant was the Senate, which is 50 50 at the time with a majority Republican because of the vice-presidential tiebreaker, suddenly became 50 49 in favor of the Democrats. So, all the committees switched over from Republican control to democratic control. And what that meant for me and the other, early Bush nominees was that the new Senate judiciary Committee, was less interested in moving confirmations along.

And so, it became a very slowed down process. And instead of me getting a hearing within a few months of the formal nomination, it ended up taking me almost two years to get in line to get my term for a judiciary committee hearing. And probably the reason it [00:14:00] happened in only two years was because the Republicans had probably regained the Senate after the 2002 midterm elections, they picked up three seats that nobody really thought they would.

And so, they became the majority again, the judges and there were a lot of us in the queue were able to get, confirmation hearings within a relatively short time in the spring and summer of 2003. And I got mine on April Fool's Day, tell you the truth, which was interesting. And then, I took the bench in late June of, 2003 after I wound down my private practice, my lingering cases that I needed to, transfer or complete before I became a judge.

Erin Gust: Have you sat by designation Anywhere? 

Judge Tymkovich: Yes. I enjoy seeing how my colleagues around the country do business and since I sit in Denver, we don't travel very much all the cases [00:15:00] for the 10th Circuit are heard in the courthouse here in Denver. We occasionally do special cities, in other cities within the circuit we've been to, Logan, Utah, grand Junction, Topeka, Oklahoma City. You know, we've been to every state from time to time, but for the most part I don't go anywhere. So, I always look for an opportunity for a designation sitting to give my clerks an opportunity to, see what the rest of the country looks like. And, over the years I've sat, four or five times in the ninth circuit, most recently, last December of 2024.

I've handled cases in the fourth circuit. I've done district court work. I've been designated and taken cases in the District of Colorado, the District of Utah, and the District of Northern and Western Oklahoma. So, I have been out and about, and I enjoy being exposed to different courts and how they do business.

And most of my district court works been to, [00:16:00] help out when the courts have been overburdened. Colorado hasn't gotten a new judge in 30 years and its judges are among the highest caseloads in the country. In Oklahoma, after the McGirt versus Oklahoma decision, which opened up a large chunk of Oklahoma to Indian sovereignty, suddenly what used to be state cases became federal court cases, because either the crimes or the incidents occurred in Indian country.

So, I helped out with the surge of cases that came as a result of the McGirt case. So those are some of the reasons behind what I do., I just enjoy having the opportunity to help out when I have the capacity, if I'm caught up and I feel my clerks can take on some more work we do that.

Erin Gust: You also served as chief of the 10th Circuit. What was that like? 

Judge Tymkovich: I was chief from 2015 to 2022, and probably the [00:17:00] highlights of, if not the low lights would've been, the McGirt decision which occurred, just before COVID. And the challenges that that placed on the circuit to ensure that we had adequate federal defender representation, with expanded caseloads down in Oklahoma, responding to the increase in prosecutions by the US attorneys and making sure that we could find judges from around the country that could help out on a temporary basis for that surge in cases.

And then of course, the pandemic was a challenge to navigate through, the shutdowns and then how the federal courts were going to reopen and hear cases, during the course of the pandemic. And as a result, 50/50 hindsight maybe there were some things I would do differently, but for the most part it forced the court to embrace technology.

We enhanced all the technology in our courtroom so that we could have, remote, oral arguments. It allowed judges who, were less comfortable [00:18:00] coming to Denver could participate by Zoom so they didn't have to travel, and we could have hybrid arguments because of that. And I think we all learned that we can be a more efficient in different ways.

So, it was a learning experience, a tough experience. But we made our way through it. And then as chief, I enjoyed being a part of the United States Judicial Conference, which is the policy making body of the federal courts. We meet twice a year in Washington D.C. there's 26 of us on the conference and every circuit chief judge is as a member.

So, I enjoy that opportunity to work with colleagues around the country, get to work closely with Chief Justice Roberts, who's the chair of the judicial conference, and really have a chance to have input on, the policy issues of the day that affect the federal courts 

Erin Gust: you currently serve on the FISA court?

What is that like? 

Judge Tymkovich: The Foreign Intelligence Surveillance Court of [00:19:00] Review. It's been an interesting project. So, this is my second year on the FISA court. Most people don't know this but there are two FISA courts. There's the FISA court that everybody reads about, and that is comprised of 11 district court judges from around the country and they're tasked with reviewing, applications by the US government for primarily electronic surveillance. But there's another court, and that's the one I'm on. It's called the FISA Court of Review. And basically, it functions like a circuit court. It's a three-judge panel that has the jurisdiction to review, applications that are approved or denied by the FISA court.

So, we're, an independent appellate review body and, that's the role that I've been placed in. Nobody's tried to appeal him an opinion from the FISA court of review yet, but that'll create an interesting jurisdictional, question for the Supreme Court, if and when that happens. [00:20:00] 

Erin Gust: While he served on the 10th Circuit, you became friends with Justice Gorsuch.

Tell us about that relationship. 

Judge Tymkovich: Yeah, Justice Gorsuch came on the court in 2006, coming off a stint in the Department of Justice, at a pretty senior level. I had actually known him for almost 15 years before that because, as I mentioned, my first job out of law school was at Davis Graham and Stubbs.

And lo and behold, one of the summer associates a 2L from Harvard Law School named Neil Gorsuch, came to Colorado. Came to Denver because he'd grown up here and was a summer associate at Davis, Graham and Stubbs and I was part of the summer program, so I was assigned randomly to be the mentor, whatever you want to call it confidant of Neil Gorsuch. So, we became friends there and, over the years, of course he didn't come to David Graham and steps. He ended up taking a position in, [00:21:00] uh, in Washington, DC after a Truman Scholarship. But he still had deep family roots here in Colorado. Spent a lot of time out here.

And then when he had the opportunity to fill the vacancy created by, Judge David Ebel, taking senior status he was able to navigate that process as nominated and confirmed by the Senate in 2006. So, he came back to Colorado. We had an office upstairs. We rekindled our friendship. We had a lot in common and, you know, his legal experiences.

We both liked to ski, so we did some skiing together and some hiking. Really, he was my best friend on the court, after he got settled in here. And of course, nobody knew that he would become, the nominee to replace Justice Scalia in 2017. It was an interesting road for him and, I sat down here as an interested observer watching his path to the Supreme Court. So, I did miss him when he left the court. I don't envy him being beyond the US Supreme Court, but [00:22:00] I'm, I'm glad he's there. 

Erin Gust: What has that friendship taught you? 

Judge Tymkovich: Well, one of the great aspects of the 10th Circuit, I think is our really well deserved and well-known reputation for collegiality and civility.

And part of it is because, not only are we professional colleagues that respect, the decision-making process, the work product of our colleagues, but we have a personal interest and personal relationships with everyone on the court to some extent or another. You know, my relationship personally and professionally with Neil, was maybe closer than, some of the other judges on the court, but the Denver judges, David Ebel, Carlos and Sarah Allison Eid now, Veronica Rossman, we've all become, friends and enjoy personal events and accomplishments and I think that's an important part of the job. Maybe it goes back to alleviating the [00:23:00] isolation and maybe the inability to really talk about what you do as a judge, what cases you're working on other than with your, clerks in your 10 circuit colleagues. In that sense, it's an outlet. And, you know certainly, Neil and I didn't agree on everything.

We probably had as many dissents against each other as anyone else on the court, on the legal front. But that's the way it should be. And that, I think one of the reasons people on this court enjoy each other’s because of the culture that's been developed here over generations and really a lot of great leadership by our, our chief judges over the years, 

Erin Gust: you've heard a number of cases that people might consider to be high profile, including Hobby Lobby, 303 Creative and Griffith v El Paso County. Reflecting on these cases, what have they taught you about the judicial role? 

Judge Tymkovich: Well, for some reason, the 10th circuits had its share of high profile cases, you know, many of which have gone to the Supreme [00:24:00] Court, maybe not as many as other circuits, but the ones that do seem to make it through to the Supreme Court do have, some important national implications and certainly, Hobby Lobby that went to the constitutionality of the Affordable Care Act and its religious exemption was one. 303 Creative, which had to do with, free speech rights by, website designers.

Griffiths didn't go to the Supreme Court, but it's an important issue on equal protection. We had the first same sex marriage case, Bishop versus Utah, that, was decided before a felon and was, a companion case of that in the US Supreme Court. So, if you really reflect on it, we've had a number of, cases involving the First Amendment, religious liberty, and free speech that somehow wound up in the US Supreme Court.

So maybe there's a common thread there. For me, and the rest of my colleagues, we don't pick our cases. They just come [00:25:00] rolling in. So, whether it's going to be a high profile one or not, who knows? And who knows what the panel's going to be. And sometimes they seep through and end up having questions of national significance.

There's a case up in the US Supreme Court, this term Child versus Salazar, that has to do with, Colorado's talk therapy, law, which is, a speech case. Over the years we had cases involving the constitutionality of the Stolen Valor Act, which was also a First Amendment case, and we've had a number of mundane cases involving the rules of civil procedure.

We've had cases out of Indian country, as I've already mentioned, McGirt one of the most important cases in the Indian law space in our history. We've had, other important religious liberty cases involving, accommodations of prisoner religious interests while incarcerated. We've had Indian Child Welfare case last year.

[00:26:00] So, our Circuit generates a lot of cases, and I think one of the reasons I love being on this court, and I think my colleagues do, is the diversity and variety of cases that we get and, who knows which ones are going to end up being nationally known, but it's a little bit of a, a random case.

Luck of the draw. 

Erin Gust: You've been on the 10th circuit for over 20 years. From your perspective, has the 10th Circuit had any through lines, culturally, politically, case type over the past 20 years, or are things in flux? 

Judge Tymkovich: Yeah, I think I've mentioned, if you look over our history since I've been on the court, there's been an important thread involving the First Amendment as we just discussed.

In addition to that, as we've also discussed our circuits, important imprint on the development of Indian law. We have, a lot of reservations and tribal territories, in our circuit. Every, every state has, some important tribal reservations. And so, because of that [00:27:00] population, we, we do generally get a lot of cases in that that naturally bubble their way up to, national significance.

So, I think our circuit's been really important in the development of Indian law. And then finally because of our, vast amount of public lands, national forests, national parks, bureau of Land Management, et cetera, we have a number of environmental cases that, um, naturally create national issues.

Colorado's the home of seven major river systems itself and the water rights issues that accompany that and the relationship between water rights, state law and federal law is really an underdeveloped part of the law. The opportunity of the Native American reservations that border, the stream systems and their water allocations very much undecided and in flux.

And we continue to get just at a [00:28:00] range of issues. We had one last year involving antelope in Wyoming. We've had sage grouse in Colorado. We've had jumping mice in New Mexico um, just a range of, endangered species. The kind of the conflict between the use of public lands and the preservation of, economic and natural resources.

So those are three areas where I think, in my observations over 20 years where we've had an important voice 

Erin Gust: for the non-lawyers who listen to this discussion during the current turbulent political times. Explain why the role of the judiciary remains important as an independent branch of our government.

Judge Tymkovich: Well, that's almost a civics question, and the longer I do this job, the more convinced I am of the genius of the constitution and our founders created a republic. [00:29:00] It's a constitutional republic, a Republican form of government entrenched in article four of the Constitution and the structural aspects of our system, the division of power and responsibility between the state and federal government, federalism the separation of powers between the executive legislative and judicial branches.

Those are the central structural features of our system of government. And then you overlay that with the Bill of Rights and the amendments that provide certain protections against, governmental overreach and the federal judiciaries on the front lines of that. And ever since Marbury versus Madison, it's been accepted that the federal judiciary has a primary role in, refereeing and policing the boundaries of the allocation of power and the interpretation of individual liberties.

And those questions endure. [00:30:00] I don't know if you could say our era's more turbulent than the sixties or the fifties or the thirties or the 1860s, or the 1820s. There's always been this balance between the role of the judiciary and the other branches of government. There's always been critics of decisions that we make.

And that's just an enduring aspect of our system of government. And the good news is that over those years, despite the tensions and despite the controversy, a rough balance has occurred, and the three branches of government continue to have this dance with each other. Maybe you call it a conversation with each other.

And I, for one on my court, I enjoy being a part of that conversation. I think it's important. It's one way that we've, reduced the temperature of conflict in this country because we have a way to decide controversies, cases, and controversies come to [00:31:00] us that are real and concrete.

We decide we; the 10th circuit decide for six states in the mountain, west of the United States, and then we have a national court, the Supreme Court, that can referee conflicts among the circuits and make final decisions about the interpretation of constitutional provisions and, the laws of Congress.

Erin Gust: Are you optimistic about the future of our republic? 

Judge Tymkovich: I'm always optimistic and being a part of the system, I really respect the way, at least my branch of government works. I think it's a very, responsive and well-functioning part of government.

In the 10th circuit, we serve on three judge panels. Our judges, range from judges appointed since Jimmy Carter to Donald Trump, to Joseph Biden. We all get along. We come from a vast range of different [00:32:00] experiences. We have a code of conduct that regulates, what we can and cannot do that provides good guideposts for fellow judges to make sure that we, stay in the space that we're constitutionally allocated, and then we work together through these problems.

You know, there's always going to be outlier decisions or decisions in high profile that, are criticized. I just think that's a natural part of the system. But I'm optimistic because I think at least the third branch continues to be, a clear, well-functioning branch. We explain why we decide cases the way we do.

We do have checks and balances within the system. The executive branch gets to nominate our replacements. The legislative branch confirms us. So, it's not just, judges parachuting in without any, opportunity for public review. For the most part, the confirmation [00:33:00] process, maybe less well now than it used to, but it still, operates to give the other branches of government and the public to understand who these people are, what their backgrounds are, and what they might bring to the federal judiciary.

Erin Gust: Moving to what I think is one of the most fun parts of the job clerks. How do you think about your relationship with your clerks? 

Judge Tymkovich: Well, I'm very pleased to be interviewed today by a former clerk and, Erin clerked for me a couple years ago. And we had a fantastic year, and we've become good friends during the clerkship and, and thereafter.

So, the clerkship aspect is really a highlight for me of the job. You know, we talked earlier about the potential for isolation. Well, that's mitigated a lot because for me, I don't have a career clerk, permanent clerk. I have four, more or less newly minted lawyers coming into my chambers for one year.

And it's fun to see the [00:34:00] dynamic with them as they develop relationships with their co-works. Um, but for me it's sort of like every year I get sort of a new generation of perspectives and young people from just all around the country, around the world, frankly, you know, come and spend a year with me.

I think it's really enriching to get to know them, to get to work on hard issues with them. I think, they enjoy the challenge of the job and, I really tried to maintain that atmosphere in my chambers. I've tried to maintain relationships with my former clerks as they go off into their careers around the country and around the world, and I, I just really enjoy that part of the job.

My wife, Suzanne, I think would say the same thing. She's become friends with clerks. We do a weekend outing every fall. We do a ski weekend with current clerks and former clerks that are interested in joining us. And I think that's sort of fostered a good atmosphere to, [00:35:00] enjoy doing the work and, you know, not having any way for an outlet from the day-to-day job. 

Erin Gust: Has your view of this relationship changed over time? 

Judge Tymkovich: No, I think it's affirmed the practice that I've had, and I didn't make it up on my own actually Justice Erickson fostered the same kind of relationship with his clerks, and so I modeled my, judge/clerk relationship based on what I experienced with him and how rewarding it was for me.

Maybe not every clerk has the same perspective, but I think for the most part it's, it's worked for me, and it's really made the job, much more fun and interesting. I love coming into the office every day and working with my clerks. We're mostly here together. It's in person face-to-face every day.

And I think that, in addition to sort of the personal aspects, I think it promotes, a better decision-making model within Chambers. They can bounce ideas off of each other. They're [00:36:00] free to challenge me on approaches I take to, my decision making. And I feel that whatever the model is, I'm sure every judge has a different way of doing it, but I feel that it helps me reach the best possible, decision-making outcomes that we can.

Erin Gust: Where are some of your former clerks now? 

Judge Tymkovich: Well, Erin they're everywhere. Certainly, a big contingent here in Denver. New York City, Washington DC, Chicago, Los Angeles, Houston, San Francisco, on and on and on. And I'm really, proud of my clerk classes. I really have enjoyed watching their professional development, their personal story, their weddings, their children, I call them grand clerks. It's been a very enriching part of the job. But they're in private practice in small firms and big firms, State court judges in Texas, in Colorado, A clerk is a judge on the [00:37:00] ninth circuit. I have clerks in the White House.

I have clerks in the Department of Justice. Two of my clerks have become Colorado Solicitor Generals. One clerk is across the street, as a judge on the District of Colorado. So public sector, state government, federal government, the judiciary. One of my clerks was just elected to congress from the third Congressional district in Colorado, Jeff Hurd. So, I joke that I've got every branch of government covered. Now I've got the third branch, the second branch, and now the first branch with, Jeff being in Congress. So, I enjoy watching their careers and they just have a, a range of different practices. Some are, not even in the law.

They're consultants outside the law. They've been very successful, in those endeavors. So, I've enjoyed watching the careers and, maybe their 10th circuit clerkship didn't promote certain aspects of where they are now. but I think it's a [00:38:00] good foundation for what they did for the rest of their careers.

And I love, I love to see their development. 

Erin Gust: Moving to some of your community involvement, you recently testified in favor of the Judge's Act. Tell us about your testimony. 

Judge Tymkovich: Well, the Judge's Act is a bill that it, it's pretty simple. It was adding additional judgeships to the federal judiciary.

We're recording this in the fall of 2025, but a similar bill had passed the Congress actually in 2024 and was vetoed on Christmas Eve by, uh President Biden but it had gotten through both, houses of Congress last year. So, the bill was reintroduced in this new Congress and normally the background for judicial the creation of additional judgeships falls on the judicial resources committee, which is one of the policy making committees for the federal judiciary.

And I actually [00:39:00] used to be the chair of the committee. They called the JRC back in 2010-ish for, for six years. And well one of my 10th circuit colleagues is chair of the committee and was planning to testify, as she should have for the judge's act. But just before her testimony she came down with a really serious, illness that was going to prevent her from being able to testify.

So, the Jjudge's Act testimony was on Tuesday. She called me Friday night, and asked if I would do this. I said, well, I'm in Notre Dame doing a moot court, so I don't know. And she said, please. And I said, that's all it takes. So, I transferred from South Bend, Indiana to Washington, DC went over to the administrative office to meet with the legislative affairs team.

They gave me a three-ring binder that was about four inches thick, and I basically had 24 hours to prepare, and I said, let's go. I did my homework over the next [00:40:00] 24 hours. And, this was the house, the testimony was the house subcommittee on the judiciary. And my legislative affairs team said your testimony can go one of two ways.

The best way is, there'll be two house members there, one from each party. They'll introduce you and leave and then you'll give your written testimony and you'll be done. The other scenario, which would be the worst-case scenario, is that you'll walk in the room and there'll be 20 of them there.

Everybody showed up, and basically, you're going to have to get geared up for a long day. Well, we walked over to the house office building the next day and walked into the hearing room and all 20 were there. And so, I knew it was going to be a long day and it was. But I enjoyed the experience.

The issue presented for me was whether there was a demonstrated need for additional judgeships, in parts of the country, and certainly the district of Colorado was on the list. So, I was [00:41:00] very much in favor of testifying in favor of that expansion. The bill was designed to add 66 judges that would be staged, in thirds over, this president's term, the next president's term, and then the president after, that's term.

So they were, it wasn't 66 new judges right away. It was staggered over, almost a decade, which is one of the reasons it passed Congress last year. The bill is I think it's been referred out of committee. I should have looked that up today. But it hasn't passed out of the house yet. I suspect that it probably will get out of the house.

Who knows what will happen in the Senate if they ask me, I'll go back and testify. So, we'll see. But that's another, aspect of the job I wouldn't have predicted. You know, testifying in front of Congress was not, on my dance card when I took the oath of office. But I'm glad I had the opportunity to do that.

It's, an interesting part of kind of being a part of the government in action. And so, I'll keep my fingers crossed on, on that bill. We'll see what happens. [00:42:00] 

Erin Gust: You mentioned you were at Notre Dame doing a mood court competition. You regularly speak and teach at law schools. What law schools have you recently spoken at in addition to Notre Dame?

Judge Tymkovich: Yeah, I try to get out a couple times a year, to the law schools.  Gosh, over the last couple years I've been to Yale, I've been to NYU, I've been to Columbia, I've been to Stanford. I'm going to go to Utah next year. I've been actually Colorado and University of Denver in the last year. I had a chance to do a judicial fellowship, with other judges that took me to, Cambridge, England.

That was really a rewarding exchange of ideas among state and federal judges. I taught for almost 10 years up at the University college. I taught a course on election law, which, I enjoyed very much stopped doing that when I became chief and have not recommenced that. I was up at the University of Colorado last night going to trial moot [00:43:00] court.

I enjoy seeing the students in action. Not just me giving a talk, but also having a chance to see students, who are performing moot court competitions. So, I like to get out and about a couple times a year and get immersed in other law schools, meet students from around the country, in different capacities.

It's been a nice way to recruit, future clerks as well. 

Erin Gust: Are you a part of any other judicial education efforts?

Judge Tymkovich: I guess I'd like to say my, outreach to law schools would be judicial education, talk about the courts, and I talked about, important cases. I did, I think over the years I've had a really important opportunity to host delegations of judges from around the world that have come to the United States and to Colorado, judges from Russia kind of pre. [00:44:00] 

Preau authoritarianism, Kazakhstan, Ukraine, Afghanistan, Ecuador, on and on and on. I've also been lucky enough to go to, the country of Ukraine four times before, last time in 2019, before the COVID, and then the escalation of the hostilities there. But those programs were an opportunity to work with Ukrainian judges to, improve their, their view of the judicial role from independence to impartiality to decision making.

And that was very much a rewarding part of my opportunity, for judicial education. And I hope to go back sometime when the war ceases to be, as hot as is now. 

Erin Gust: What is your connection to Ukraine? 

Judge Tymkovich: Well, my, my last name is Tymkovich, which you might guess is a Slavic origin. And on my father's [00:45:00] father's side, so my, paternal grandfather, grew up in Ukraine.

He actually immigrated when he was six years old to Colorado, the United States in, in 1913. So, I had a very strong relationship with my grandfather who was Ukrainian native, was naturalized in the twenties here in Denver, Colorado. So, I had that personal connection, to that part of Eastern Europe.

My, paternal grandmother was Polish, on my mom's side Swedish and Scottish. So, I had that personal connection. And then because of that, I think I was invited in the first time to go and be a part of an educational delegation and I really enjoyed getting to know the not just the Ukrainian judiciary, they're professional organizations, but, uh, the people, the, tremendous beauty and natural resources and history of Ukraine.

And on one of my visits, I was able to go to my grandfather's small [00:46:00] village in Western Ukraine. And lo and behold, not only did I see the village, but there were long lost relatives that were there to greet me and was able to reconnect with kind of distant family members, cousins.

And so, you know, not only on the professional side, it was rewarding, but it was also very rewarding on the personal side. 

Erin Gust: You also took a somewhat recent trip to Israel with a group of judges. Will you please tell us about that trip? 

Judge Tymkovich: Yes, I went with the judicial delegations at Israel in March of 2024.

We're recording this interview at a time when it looks like there might be a successful ceasefire, between Israel and Hamas. At the time I went, the conflict was in full swing and, we were all federal judges, but we had a chance to visit judicial colleagues in Tel Aviv and Jerusalem in [00:47:00] particular.

We met with, members of the Israeli Supreme Court, and really was an extraordinary comparative law session comparing the Israeli Supreme Court and its judiciary to the way we do business. And, if anything, if, if people think that the US Supreme Court is, is very powerful, they ought to go to Israel and see, the Israeli Supreme Court, which really probably has a larger, potential, role in the Israeli government than even our US Supreme Court does.

And so, we had a chance to meet with, judicial colleagues. We met with lawyers that would advise their version of the State Department, the Department of Defense, you know, the, the military, the role of lawyers in their civic society, the role of lawyers, who are embedded in the Israeli military and their involvement in advising military personnel.

During the conflict, we had a [00:48:00] chance to visit with hostage families. We had a chance to visit one of the Kibitz that had been attacked, on October 7th. And just was able to see a range of the Israeli, legal culture, its governmental structures. We met with the Speaker of the Knesset.

So, we really saw three branches of the government from a firsthand experience, we understood better the role of, the religious protections. Israel has a large Muslim population, including a Muslim member of the Israeli Supreme Court. So it, it was really an interesting opportunity to see firsthand how a country in conflict was able to continue its government operations, how it's going to operate during the time of conflict, the pressures that the country experienced from, hostile neighbors and, now looking back on that months later it is a different landscape, [00:49:00] potentially, and we will see if there's some resolution of the conflict that will be a positive outcome.

Erin Gust: You've also been involved in various committees over the years, and now please tell us about those. 

Judge Tymkovich: Well, we've talked about some of those and, I guess I've volunteered or been volunteered to do a lot of 10th circuit committee work. The judicial council of the years I've been very interested in and actively involved in putting together our bench and bar and judges only conferences that really are prime educational opportunities for my colleagues and lawyers that come to our events.

You know, nationally I mentioned I was chair of the judicial resources, committee and a kind of a rough patch when we went through, a budget crisis called sequestration. But I was glad to be there to help out. As my membership on the [00:50:00] JRC continued, I was, active in promoting additional workplace protections for our employees. We added a whistleblower protection provision for judicial employees. The Chief Justice appointed me to be on a workplace conduct working group that reviewed the entire menu of employment dispute resolution processes of the federal judiciary, and I think has moved our processes forward in really positive ways.

I recently became chair of the national Judiciary Judicial Conduct and Disability committee, which, reviews allegations or misconduct complaints or disability complaints among our colleagues. And then as, as we mentioned, I've been on the FISA court for the last couple years, so I've had a really interesting portfolio of different experiences, both locally and nationally.

Erin Gust: We were [00:51:00] talking about this a little bit beforehand, but what are some of your most cited cases? 

Judge Tymkovich: Well, you never know what will interest people. I mean, I think a lot of people, judges say it's, we do our work, and we decide an opinion, it gets filed and it's kind of like, putting a message in a bottle and throw it in the ocean, and you never quite know where it's going to wash up and who's going to pay attention to it.

I’ve been thinking about that recently, I wondered what was my most cited case. And I had no idea. I'd never looked that up before. And it turned out there was a case an opinion I wrote in 2011, and it's been cited over 4,000 times. 

Erin Gust: It's a lot 

Judge Tymkovich: around the country, which is a lot. And it's not a case I would've predicted. It wasn't just like, the standard of review for X is this. It was something more, more substantive, which I guess I'm a bit proud of. In addition to that, some of, the higher profile cases [00:52:00] that I've been involved in, Hobby Lobby. 303Creative, have generated a lot of scholarly attention.

You know, two or three of my cases have made it into, case books and I've done, I don't know, six or seven law review articles over the years, just on topics that interest me, that seem relevant to my day-to-day job, I just wanted to think through in a more, theoretical way on certain topics.

I wrote one on, the McDonald Douglas Case that's way, way back in 2008. It's been cited by the US Supreme Court three times. It's been in dozens of cited and dozens of law review, and it's been cited in 50 or 60 cases by judges that are, concerned about how to interpret the McDonald Douglas Title VII framework for, deciding discrimination cases.

So you never know who's paying attention to what you do, and if they pay [00:53:00] attention in a positive way, that's reinforces that, we're making a contribution to the national conversation about what the law is or what the law should be. 

Erin Gust: What are some of your most memorable cases?

Judge Tymkovich: Well, we've mentioned some of them already. I think every judge would say a case that goes to the US Supreme Court gets his or her attention. I've written the majority opinion for three cases that went to the US Supreme Court. And now obviously you have a rooting interest in those.

I'm two and one, so not unanimous. So, in fact, I was reversed last year, nine to nothing I regret to say, but maybe they were right. So you look at those and I think the cases where I feel that I really synthesize the law in an important way, that, , other judges or practitioners can pick up and say this is a model for this [00:54:00] particular point of law.

And I think I've had a few of those. I had a case called Henthorn that had to do with 404B. I had a case called Lesh that had to do with vagueness of federal regulatory provisions. I had an interesting case involving whether you could cross corners between public land, over private land in Wyoming, a case called Iron Bar that I think is a helpful synthesis of the clash between federal law, state law, and private trespass interest.

Had a couple of Second Amendment cases that I think are contributions to the advancement of those principles. And, I had an election law case here in the circuit that made its way into the election law casebook that I use. So, I was happy to be able to teach a case that I actually wrote the descent on.

I didn't prevail on that when I wrote, I wrote a dissent. So those are some that come to [00:55:00] mind. Over the years it's been fun to think back on some of the cases that I've had a chance to be involved in. 

Erin Gust: Do you have any advice for practitioners briefing and arguing before the 10th Circuit?

Judge Tymkovich: Well, that's an extended question for a continuing legal education seminar. I think, for the most part private practitioners should know their strengths and we weaknesses. And if they don't have a background or experience in appellate law, they ought to team up with somebody that does. There's really no mystery about writing an effective brief.

It's persuasive writing. Lead with your best arguments, don't burden us with unnecessary detail and know your record and know the law. My clerks are going to fly back the briefs, and if you misstated the record, we're going to find that out. If you've misstated the law, we're going to find that out. And that's going to affect the credibility and the likelihood of success [00:56:00] that you have.

Oral arguments as I think a special skillset's different than doing trials. And if you don't do a lot of. Appellate arguments. Do submit courts before you come over to the 10th circuit. And again, know your record. Know your audience, know your law. Know your weaknesses. Know your strengths, and be able to candidly, acknowledge those strengths and weaknesses and try to mitigate them when you can.

Don't ask artificial intelligence to write your brief. The topic of and a lot of courts and a lot of organizations, we're getting those and you're going to get sanctioned likely or get your case dismissed. So those, those are kind of few of the high points. 

Erin Gust: Are there things that move the needle that are not obvious during oral argument?

Judge Tymkovich: I think a lawyer's willingness to concede a weakness and explain it moves the [00:57:00] needle with me. And so many of our cases, lend themselves to a broad interpretation or a narrow interpretation. And lawyers that come in with a maximalist approach really risk the danger of not being able to provide a coherent, limiting principle to the rule of law that they want the panel to reach.

And if you can't acknowledge the potential breadth of an argument and how that might spill over into other areas, that a, that a court would not be interested in pursuing, you've done your client a disservice because your objective is to prevail when a case on behalf of your client's interests and not push some broad reading of the law that's unnecessary to win.

And if your limiting principle doesn't exist and the implications are troubling, that undercuts the ability of the panel to rule in your favor. [00:58:00] 

Erin Gust: The title of this podcast is Tales from the 10th. So, in line with that, what are some of your favorite memories or tales from serving on the 10th Circuit? 

Judge Tymkovich: Well, I hadn't thought about that question, but I guess I would say, for me, the memorable experiences has been traveling to do cases in smaller communities within the 10th circuit.

I mentioned Logan, Utah, Grand Junction, Colorado too. To colleges that do not have law schools but had just a tremendous outpouring of support for the oral arguments. Students that might have been interested in the law or law enforcement came to these arguments and I think really benefited from them. So, that to me is a favorite memory. 

When I became chief judge, we had a reunion of our court, kind of a mini retreat, and all the [00:59:00] previous living chief judges came to that event. And it was really special for me to have, you know, in one room at one place all my previous, chief colleagues when I took over the position and the support that they've given me over the years, 

I think our bench and bar conferences have really been a tremendous educational outreach and opportunity for the lawyers within the circuit. We've just had a range of events since I've been on the court. Many of them sponsored by the 10th Circuit Historical Society. It was a highlight for me during my tenure as Chief to cut the ribbon for the 10th Circuit historical display in the Byron White Courthouse.

We've revamped the Byron White display, also in the courthouse. We’ve dedicated the courthouse in Oklahoma City to former Chief Judge [01:00:00] Holloway. We've had portrait ceremonies in this courthouse for Judge Seymour and Judge Holloway. We restored the Historic District of Colorado courtroom in the Byron White Courthouse.

So many highlights and so many programs. Over the years, you know, certainly when, when Justice White died, the chance to reflect on his service, as a Supreme Court justice and as a legal leader in Colorado. We've done programs in Tulsa, Oklahoma City for the Historical Society.

I don't know what you have in mind, but I'm sure there's always, a program in mind for the historical society. So, a lot of highlights. 

Erin Gust: Well, judge, I think we're going to wrap up unless there's anything else you'd like to tell us. 

Judge Tymkovich: I've enjoyed the conversation very much Erin, thanks for coming over.

Erin Gust: Thanks. This is Erin Gust signing off from Tale from the 10th.

Tina Howell: [01:01:00] This is Tina Howell, the editor and producer of Tales from the 10th. Subscribe and download at the Historical Society's website, 10th circuit history.org, or at Apple Podcast, Spotify, or anywhere you get your podcast. Special thanks to Greg Kerwin, Brent Cohen, Stacy Guillon, Leah Schwartz and Diane Bauersfeld.