Neil Gorsuch Gets Grilled on His Opinion of Women Who Take Maternity Leave

March 22, 2017, 12:45 PM UTC

During his Supreme Court confirmation hearing on Tuesday, Judge Neil Gorsuch cleared up questions about his regard for working women.

Prior to the start of his hearing on Monday, a former law student named Jennifer Sisk submitted a letter to the Senate Judiciary Committee claiming that last year the judge told a class at the University of Colorado Law School that employers should quiz female job candidates about their plans for having children, suggesting that women might “manipulate” maternity benefits by taking time off to have a child and then quitting shortly afterwards.

Sisk’s allegations prompted outcry from Gorsuch supporters. Another student who had been in the same 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.” Likewise, eleven women who previously clerked for Gorsuch submitted a letter in support of him. 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.”

Gorsuch got a chance to speak on the matter himself Tuesday when Sen. Dick Durbin (D-Ill.) asked him about Sisk’s accusation.

“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?” Durbin asked Gorsuch.

“No, Senator, and I’d be delighted to actually clear this up,” Gorsuch replied, saying he’d first heard of Sisk’s claim the night before his confirmation hearing. He told Durbin that the “standard textbook” he relied on as a legal ethics professor—which he offered to share with Durbin—contained a hypothetical involving maternity leave and he posed a question about it to his class.

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“The problem is this,” he said, “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?” He said he and his students debated “the pros and the cons in a Socratic dialogue that they can think through for themselves how they might answer that very difficult question.” He admitted to Durbin that he did ask for a show of hands, but not about the question the senator referenced. Rather, he asked his class, “How many of you have had questions like this asked of you in the employment environment? An inappropriate question about your family planning?” Gorsuch said.

He told Durbin that he is “shocked every year” by the number of women who say they’ve encountered this kind of query from a prospective employer.

“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 [retired] Justice [Sandra Day] 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.”

Gorsuch was less straightforward when answering earlier questions posed by Durbin about women in the workplace.

Durbin asked if the judge believed it would be sex discrimination for an employer to ask only female job applicants about their plans for a family. Gorsuch said such a question would be “highly inappropriate.” He declined to make a legal judgment, as he may have to rule in such a case in the future and he “wouldn’t want to prejudge it sitting here.”

The two had another tense exchange when Durbin asked if Gorsuch believed “there are ever situations where the cost to an employer of maternity leave can justify an employer asking only female applicants, and not male applicants, about family plans?”

Gorsuch told Durbin, “Those are not my words and I would never have said them.” Durbin clarified that he was not attributing the statement to Gorsuch, but simply asking if the judge agreed with it.

“And I’m telling you I don’t,” Gorsuch said.

Gorsuch, whom President Donald Trump nominated to the Supreme Court in January, is generally regarded as a qualified conservative candidate. But Democrats have pressed the Colorado appellate judge on a record that suggests a bias toward corporate interests. Sisk’s allegations added fuel to that line of attack.

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