Backed by several letters from his former law students refuting a claim that he advocated employers probing the family planning of female job candidates, Supreme Court nominee Judge Neil Gorsuch explained to a senior Democrat on the Judiciary Committee that he facilitated classroom discussion of how young women lawyers deal with such a “disturbing” and frequent professional issue.
Gorsuch, who has taught legal ethics at the University of Colorado, allegedly declared during a class that “companies must ask females about their family and pregnancy claims to protect the company,” per a letter from Jennifer R. Sisk, a onetime student of Gorsuch’s, that was addressed to the Senate panel’s chairman and ranking member. The letter also said Gorsuch implied that women routinely use companies solely for maternity benefits, working a job when they need them and departing it after they don’t.
Several students, some of whom identified as liberals, pushed back against those observations in their own letters to the committee, saying that Gorsuch was a skilled devil’s advocate whose ability to argue for multiple angles of an issue was an asset to their education. In the example cited by Sisk, Gorsuch “made compelling points about the numerous issues and subtle discrimination women face in the workplace that many men are oblivious to,” wrote one student, and “[t]rue to form (and the Socratic teaching style), Judge Gorsuch also presented counterarguments presenting the hardships employers face due to paid maternity leave policies, which I, as a liberal feminist Democrat, as well as the majority of my colleagues rejected.” Ed Whelan has text of eight such letters from Gorsuch’s former pupils at National Review.
Illinois senator Dick Durbin pushed Gorsuch on the subject during day two of the judge’s confirmation hearings Tuesday afternoon. Gorsuch said the hypothetical discussion material came from “a standard textbook.” Here is his answer, in full:
“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 pleasure. I teach from a standard textbook that … a number of professors at CU and elsewhere use. It’s an excellent textbook. … One of the chapters in the book confronts lawyers with some harsh realities 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 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, 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 you can see for yourself, senator, which asks the question, and it’s directed to young women, because sadly this the 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, the 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 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 cons in a Socratic dialogue so 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 lawyer 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.”
