Tuesday at his confirmation before the Senate Judiciary Committee, Judge Neil Gorsuch responded to an accusation made by former Obama administration staffer Jennifer Sisk that he once told students women manipulate maternity leave.
Sisk, a graduate of the University of Colorado Law School, alleged Gorsuch made the comments in a legal ethics class. However, when confronted by Sen. Dick Durbin (D-IL), Gorsuch promptly denied the allegation.
DURBIN: Let me ask you this specific one. It was 1993 and you were at Oxford, when you believe you first met this professor. Professor Finnis was tapped by the then-Colorado Solicitor General Timothy Tymkovich, to help defend a 1992 state constitutional amendment that broadly restricted the state from protecting gay, Lesbian and bisexual people from discrimination.
During the course of the deposition which he gave in support of that effort, Finnis argued that antipathy toward LGBT people, specifically toward gay sex, was rooted not just in religious tradition, but Western law and society at large. He referred to homosexuality as bestiality in the course of this as well.
Were you aware of that?
GORSUCH: Senator, I — I know he testified in the Romer case. I can’t say sitting here I recall the specifics of his testimony or that he gave a deposition.
DURBIN: I guess the reason I’m raising this is this is a man who apparently had an impact on your life, certainly your academic life. And I’m trying to figure out where we can parse his views from your views; what impact he had on you as a student; what impact he has on you today with his views. GORSUCH: Well, then I guess, Senator, I think the best evidence is what I’ve written. I’ve written over — gosh, written or joined over 6 million words as a federal appellate judge. I’ve written a couple of books. I’ve been a lawyer and a judge for 25 or 30 years. That’s my record. And I guess I’d ask you respectfully to look at my credentials and my record. And some of the examples I’ve given you from my record about the capital habeas work, about access to justice. I’ve spoken about over-criminalization publicly.
Those are — those are things I’ve done, Senator.
DURBIN: And what about LGBT (inaudible) individuals?
GORSUCH: Well, Senator, there are — what about them?
DURBIN: Well, the point I made is…
GORSUCH: They’re people. And, you know…
DURBIN: Of course. But what you said earlier was that you have a record of speaking out, standing up for those minorities who you believe are not being treated fairly. Can you point to statements or cases you’ve ruled on relative to that class?
GORSUCH: Senator, I try to treat each case, and each person, as a person, not a this kind of person, not a that kind of person — a person. Equal justice under law is a radical promise in the history of mankind.
DURBIN: Does that refer to sexual orientation as well?
GORSUCH: Senator, the Supreme Court of the United States has held that single-sex marriage is protected by the Constitution.
DURBIN: Judge, would you agree that if an employer were to ask female job applicants about their family plans, but not male applicants, that would be evidence of sex discrimination prohibited by Title VII of the Civil Rights Act?
GORSUCH: Senator, I’d agree with you it’s highly inappropriate.
DURBIN: You don’t believe it’s prohibited?
GORSUCH: Senator, it sounds like a potential hypothetical case. It might be a case or controversy I might have to decide, and I wouldn’t want to pre-judge it sitting here at the confirmation table. I can tell you it would be inappropriate.
DURBIN: Inappropriate. Do you believe that there are ever situations where the costs to an employer of maternity leave can justify an employer asking only female applicants and not male applicants about family plans?
GORSUCH: Senator, those are not my words and I would never have said them.
DURBIN: I didn’t say that. I asked you if you agree with the statement.
GORSUCH: And I’m telling you I don’t.
DURBIN: Thank you.
In Wang vs. Kansas State, the case involved a cancer-stricken professor. You wrote an opinion that noted that EEOC guidance commands deference, quote, “only to the extent its reasoning actually proves persuasive.
EEOC’s enforcement guidance on pregnancy discrimination provides as follows. Because Title Seven prohibits discrimination based on pregnancy, employers should not make inquiries into whether an applicant or employee intends to become pregnant.
The EEOC will generally regard such an inquiry as evidence of pregnancy discrimination where the employer subsequently makes an unfavorable job decision affecting a pregnant worker. Do you find this instruction to be persuasive?
GORSUCH: Senator, I — there’s a lot of words there. And if you’re asking me to parse them out and give you a legal opinion, then I — I fear that you may be — I — I’d respectfully say I’d have to study it in the course of a judicial case.
DURBIN: Well, let me bring it right down to the operative words. Whether employee should or should not make inquiries into whether an applicant or employee intends to become pregnant.
GORSUCH: Senator, I need to — it sounds like you’re asking me about a case for a controversy. And I — with all respect, when we come to cases in controversies, a good judge will listen.
Socrates said the first virtue of a good judge is to listen courteously and decide impartially.
DURBIN: I think you know why I’m asking these questions.
GORSUCH: No, this one I — I don’t.
DURBIN: The reason I’m asking is because about your views on pregnancy women in the work place is because two of your former students from legal ethics and professionalism class last spring wrote to this committee to say how troubled they were by your comments in an April 19th class.
It was a gender-targeted discussion regarding the hardship to employers of having female employees who may use maternity benefits. One of these students signed her name publicly to her letter, which is a pretty brave thing to do.
That student didn’t just make this issue up after you were nominated. Last night, the University of Colorado Law School confirmed that she had voiced her concerns with administrators shortly after your April 19th class and also confirmed that the administrators told her they would raise this matter with you, though they never actually did so.
When we receive information like this which raises questions about your views and conduct on important issues, I want to get to the bottom of it. I mentioned that to you yesterday in my opening statement that I would be bringing this up.
So, I just want to ask you to confirm, did you ask your students in class that day to raise their hands if they knew of a woman who had taken maternity benefits from a company and then left the company after having a baby?
GORSUCH: No, Senator. And I’d be delighted to actually clear this up.
GORSUCH: Because the first I heard of this was the night before my confirmation hearing. I’ve been teaching legal ethics at the University of Colorado for seven or eight years. It’s been a great honor and a pleasure.
I teach from a standard text book that every professor — well, I don’t know if every professor — a number of professors at CU and elsewhere use. It’s an excellent textbook –Professors Lerman and Shrag.
In one of the chapters in the book confronts lawyers with some harsh realities that they’re about to face when they enter the practice of law. As you know and I know, we have an unhappy and unhealthy profession in a lot of ways.
Lawyers commit suicide at rates far higher than the population. Alcoholism, divorce, depression are also at extremely high rates. Young lawyers also face the problem of having enormous debts when they leave law school.
As a — and that’s a huge inhibition for them to be able to do public service like you and I are so privileged to be able to do. We talk about those things.
There is one problem in the book — and I’d be happy to share with you the book and the teacher’s manual so that you can see for yourself, Senator — which asks a question. And it’s directed to young women because sadly, this is a reality they sometimes face.
The problem is this. Suppose an older partner woman at the firm that you’re interviewing at asks you if you intend to become pregnant soon. What are your choices as a young person?
You can say yes, tell the truth. Hypothetical is that it’s true and not get the job and not be able to pay your debts.
You can lie, maybe get the job. You can say no.
That’s a — that’s a choice, too. It’s a hard choice. Or you can push back in some way shape or form. And we talk about the pros and the cons in this acratic (ph) dialogue that they can think through for themselves how they might answer that very difficult question.
And Senator, I do ask for a show of hands, not about the question you asked, but about the following question. And I ask it of everybody. How many of you have had questions like this asked of you in the employment environment, an inappropriate question about your family planning?
And I am shocked every year, Senator, how many young women raise their hand. It’s disturbing to me.
I knew this stuff happened when my mom was a young practicing lawyer, graduating law school in the 1960s’. At age 20, she had to wait for a year to take the bar. I knew it happened with Justice O’Connor, couldn’t get a job as a lawyer when she graduated Stanford Law School and had to work as a secretary. I am shocked it still happens every year that I get women, not men, raising their hand to that question. Thank you for the opportunity to clarify that Senator.