Tuesday, March 21, 2017
Law Student Either Is A Political Hack Or Too Dumb To Understand How Neil Gorsuch Was Teaching
Law Student Says Gorsuch Made Sexist Statement In Class. Her Classmates SHRED Her Claim.
In an open letter posted on Sunday, a former law student of Supreme Court
nominee Judge Neil Gorsuch accused him of making a sexist argument in class.
The letter was picked up by NPR and others and reported on Monday under
catchy headlines like NPR's "Former Law Student of Gorsuch Told Class
Women Manipulate Maternal Leave" (a title that has now been changed,
by the way). But now a score of the student's classmates have debunked
The letter was written by former University of Colorado Law School student
Jennifer Sisk (who was once a staffer for a Democrat, a detail later added
by NPR) and posted by the National Employment Lawyers Association
and the National Women's Law Center on Sunday evening ahead of
Gorsuch's confirmation hearing on Monday. In the letter, Sisk alleges that
while Gorsuch was teaching at Colorado last year, he told students that
employers, particularly law firms, should press potential female
employees about whether they were planning to have children,
suggesting women often manipulate maternity leave benefits, and
making "very clear that the question of commitment to work over family was one that only women have to answer for."
Throughout this class Judge Gorsuch continued to make it very clear that the question of commitment to work over family was one that only women have to answer for. There was no discussion of the reasons women may leave employment when having children or the difficulties in raising young children and meeting the high billable hours required in law firms. Instead, Judge Gorsuch continued to steer the conversation back to the problems women pose for companies and the protections that companies need from women.
A number of people have since come forward to defend Gorsuch, including
several students who were in his class — some, in fact, in the very same
class as Sisk. National Review's Ed Whalen collated some of the responses
strongly refuting Sisk's accusation. A few examples below.
Baker Arena, a self-described "liberal feminist Democrat" and one of Sisk's
former classmates, who was there for the lecture Sisk describes, sent her
own letter to the Senate Judiciary committee explaining Gorsuch's
highly effective "hypothetical ethical dilemma" lecture.
"During Judge Gorsuch’s presentation of such counterarguments, I do not
recall him accusing women of taking advantage of paid maternity leave
policies, much less espousing such accusations as his personal beliefs,
" her letter concludes. "In class and in our conversations outside of class,
Judge Gorsuch was always extremely respectful, inclusive, tolerant and
open-minded. Additionally, Judge Gorsuch’s never shared his personal
views on legal or ethical matters in class and was somewhat of an
enigma. Had he made the statements he is accused of making, I
would have surely noticed as they would be out of his character and
had he said such things, I potentially would have even said something
to him concerning these statements. That is not the Judge Gorsuch I know."
Excerpt of Arena's letter (courtesy Whalen):
In the Legal Ethics class I took from Judge Gorsuch, the textbook we used contained numerous hypothetical ethical dilemmas that attorneys could potentially face in their practice. Judge Gorsuch would use these dilemmas in the textbook in his lectures to illustrate the fact that there are few black and white solutions to the ethical issues attorneys face daily. Adept at challenging the views of students (and sometimes frustratingly so), Judge Gorsuch would use the Socratic method and play devils advocate in his lectures as the class debated the appropriate course of action to confront the ethical issues at hand. If a valid point was made in favor of one course of action, he would present counterfactual points to illustrate the compelling arguments in favor of another course of action. Through the constant debate of ethical dilemmas that semester, we left with a greater appreciation of the nuances attorneys must account for in making ethical decisions consistent with our code of professional responsibility.
I was present in the class at issue and sat directly in front of the accusing student. I recall the hypothetical ethical dilemma discussed in the lecture that day. In that hypothetical ethical dilemma, a female law student, suffering financial hardship, is asked at an interview if she planned on having children and using the firms maternity leave policies. The female student in the hypothetical was planning on having children but nervous to tell the potential employer, for fear she might not get the position. Judge Gorsuch began to lead the class in debate as to what the appropriate course of action should be for the female law student. Judge Gorsuch made compelling points about the numerous issues and subtle discrimination women face in the workplace that many men are oblivious to. In fact, as a man, I had never really considered the extent of pregnancy related discrimination that women face in the workplace until this very class. True 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.
During Judge Gorsuch’s presentation of such counterarguments, I do not recall him accusing women of taking advantage of paid maternity leave policies, much less espousing such accusations as his personal beliefs. In class and in our conversations outside of class, Judge Gorsuch was always extremely respectful, inclusive, tolerant and open-minded. Additionally, Judge Gorsuch’s never shared his personal views on legal or ethical matters in class and was somewhat of an enigma. Had he made the statements he is accused of making, I would have surely noticed as they would be out of his character and had he said such things, I potentially would have even said something to him concerning these statements. That is not the Judge Gorsuch I know.
Whalen highlights seven other student statements nearly identical to Arena's
take, including this one from Ruthie Goff, who took Gorsuch’s class in 2015:
I purposefully took Ethics with [Judge Gorsuch], because I wanted to be pushed and challenged on the difficult questions I would face as a woman entering the legal community. That’s exactly what his class did. Judge Gorsuch asked tough and sometimes uncomfortable questions, and I appreciated every one of them.…
One such scenario asked us to consider whether or not an employer can ethically ask a female applicant if she plans to have a family soon. At first, I thought absolutely not because that’s not fair nor can that be ethical. The discussion proceeded much in that way until Judge Gorsuch finally revealed employers are not prohibited from asking that question but only from making the final decision based on that answer. That’s the rule and the law. As much as I disagreed, I understood why the Judge pushed us so hard. The point was to get us to understand that the law will challenge us to resolve difficult issues in ways that we may not agree with, but in a way we have a legal and ethical duty to do so. During this discussion, I never felt as though he was expressing his personal belief regarding the scenario but was doing his job in remaining neutral and guiding us to an understanding of how we must sometimes divest ourselves of personal beliefs in order to apply the rules of ethics and the rule of law.
Excerpt of statement from Glenn Matthews, who likewise took Gorsuch's
During each class, he posed provocative legal ethical questions and hypotheticals to his class. The class at issue was no different in that we explored difficult issues and topics that affect nearly all parents in the legal profession; specifically, how will the obligations of being an attorney impact my ability to effectively parent? Additionally, we discussed the ethical implications, if any, of applicants applying for jobs while knowing they were soon planning to start or expand their families.
The tone and tenor of that discussion seemed similar to ethical discussions we had about disclosing a client’s secrets after their death, or how the rising cost of a legal education creates a disincentive to enter public service. The point of this class was to explore difficult ethical questions—questions with no easy answers. Judge Gorsuch’s comments in this instance were in keeping with the dilemmas posed, which were admittedly difficult, and were not inappropriate or demonstrating bias.
"Although Judge Gorsuch did discuss some of the topics mentioned in [Sisk’s] letter, he did not do so in the manner described. The judge frequently asked us to consider the various challenges we would face as new attorneys." - Will Hauptman
"The textbook noted that there is a lot of attrition among women lawyers. Judge Gorsuch encouraged discussion on this point and asked students to share their experiences. I shared an experience where I was asked about family planning in a job interview and the overriding concern seemed to be whether I would need maternity leave. Judge Gorsuch thanked me for sharing my experience and used it to demonstrate that gender inequality in the profession was not just theoretical, but something that may occur to the classmate sitting next to us." - Jordan Henry
"As a former student, I am a witness to the respect that he showed towards his female students and fellow professors at Colorado Law. The supposed remarks he made in his 2016 Legal Ethics class are completely out of character and I find very hard to believe are accurately relayed." - Catherine Holgrewe
"While I was not in the class during which the alleged incident occurred, I can unequivocally say that I never witnessed him make any discriminatory statements about women or other minorities, nor demean or belittle anyone. He expected his students to appeal to logic and he demonstrated the same levelheaded, apolitical focus on reason over emotion." - Kate Waller