Neil Gorsuch’s Former Law Clerk: It’s ‘Inconceivable’ He Told Class Women ‘Manipulate’ Maternity Leave

March 20, 2017, 11:43 PM UTC

When senators begin quizzing Judge Neil Gorsuch on day two of his Supreme Court confirmation hearing on Tuesday, they’re expected to question his stance on abortion rights, gun rights, religious rights, environmental protection, and ask whether he will be willing to rule against the White House in a potential case challenging the administration.

But there’s another topic that may come up: maternity leave. On Sunday and Monday, debate erupted about how the Colorado appellate judge regards professional women, especially those who use an employer’s paid maternity leave benefit.

The disagreement started with a letter that a woman named Jennifer Sisk sent to the Senate Judiciary Committee, Sen. Chuck Grassley (R-Iowa), and Ranking Member Sen. Dianne Feinstein (D-Calif.) on Friday. In it, Sisk, a 2016 graduate of University of Colorado Law School, where Gorsuch has taught since 2008, reports that the judge told a class that employers should quiz female job candidates about their plans for having children, suggesting that women might extract maternity benefits from a company and quit shortly after taking their leave.

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In her letter, Sisk recalled Gorsuch asking his students how many of them knew of women who “manipulated” maternity benefits. When few students raised their hands, “[h]e then announced that all our hands should be raised because ‘many’ women use their companies for maternity benefits and then leave the company after the baby is born,” she wrote. “He kept bringing it back to that this was women taking advantage of their companies, that this was a woman’s issue, a woman’s problem with having children and disadvantaging their companies by doing that,” she told NPR, which first reported on the letter. Sisk, who reportedly worked for the Interior Department during the Obama administration, came forward with the claim, she says, “so that the proper questions could be asked during his confirmation hearings.”

Her letter prompted outcry from other former students and law clerks with ties to Gorsuch. Will Hauptman, another student who had been in the same Gorsuch-led class as Sisk, issued his own letter refuting her characterization of Gorsuch’s remarks, stating that “Judge Gorsuch did discuss some of the topics mentioned in the letter, [but] he did not do so in the manner described,” he wrote. He said Gorsuch asked the students to consider the realities of working long hours and raising a family with a “seriousness” that “reflected his desire to make us aware of them, not any animus against a career or group.”

Likewise, eleven women who previously clerked for Gorsuch submitted a letter in support of him, writing: “Judge Gorsuch by his conduct, his tone, his work assignments, his casual remarks, his advice, his mentorship, his humor, his pursuits, and even the most simple gestures, values and treats women equally.”

One of the women who signed the letter, Theresa Wardon, now a partner at boutique trial firm Wheeler Trigg O’Donnell, told Fortune it’s “inconceivable” that Gorsuch would “ever believe those things or say them in front of a class.”

Wardon, who characterizes herself as a Democrat, clerked for Gorsuch from 2008 to 2009 and had presented to Gorsuch’s ethics class last year. The judge, she says, has been a “huge supporter of my career.” When Wardon was considering whether to work at a small firm or a big firm after her clerkship, she turned to Gorsuch for advice and decided on the former. “The judge had done something similar and was super encouraging of me,” she says, adding that Gorsuch was one of the first people she contacted after making partner.

Wardon, who does not have children, can’t remember ever discussing maternity leave specifically with Gorsuch, but says they talked about work-life balance. “I think he struggled with those issues himself as a dad; it’s something I could certainly turn to him about,” she says.

Wardon also pointed to the professional achievements of Gorsuch’s mother—the first woman to the lead the Environmental Protection Agency in 1981—as a reason why Sisk’s accusations are so unfathomable. Wardon says she could see how Gorsuch had been shaped by his mother and the experience of losing her at a young age. (Anne Gorsuch Burford died of cancer in 2004 at age 62.)

She says senators should consider “common sense” when taking Sisk’s accusations into account at Gorsuch’s confirmation hearing this week. “If a professor were to make those statements—in an ethics class, no less—it would have drawn more attention.” she says. Wardon also defends Gorsuch against the accusation that he’s anti-women rights. His much-publicized decision in favor of Hobby Lobby in a case about whether it had to provide female employees with birth control “was about interpreting a statute, not a pronouncement about women’s rights,” she says.

The White House, for its part, also denied Sisk’s allegations, telling Fortune they are “completely false.” Starting Tuesday, Gorsuch may finally get to speak on the matter himself.


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