During his confirmation hearing today, Judge Gorsuch was confronted with an allegation that he had once told a law class employers should ask women about their plans to get pregnant in the future. Gorsuch denied he had ever said such a thing and pointed to a hypothetical question that is part of a standard textbook he uses to teach his class on ethics.
In case you missed this controversy, a former University of Colorado law student named Jennifer Sisk claimed, “Gorsuch told his students that companies should ask women about their pregnancy plans during job interviews.” Sisk turns out to be a Democrat who has worked for Senator Mark Udall. In addition, another student in the class said Sisk had taken Gorsuch’s comments out of context. However, Sisk’s complaint couldn’t be entirely dismissed because she had gone to the University with her concerns shortly after the class took place and long before Gorsuch was nominated for a seat on the Supreme Court. That doesn’t mean her complaint was accurate or fair, only that it wasn’t something invented just prior to the confirmation hearing.
Today, Sen. Dick Durbin pressed Gorsuch on the allegation made by Sisk. “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.
“No, Senator, and I’d be delighted to actually clear this up,” Gorsuch repled. “I teach from a standard textbook that…a number of professors at CU and elsewhere use,” he said. Gorsuch continued, “One of the chapters in the book confronts lawyers with some harsh realities that they are 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 have the problem of having enormous debts when they leave law school…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 the question—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 are interviewing at asks you if you intend to become pregnant soon. What are your choices as a young person?”
Gorsuch then suggests there are three options, assuming for the sake of the hypothetical you are planning to get pregnant. You can tell the truth and probably not get the job. You can lie and possibly get the job. Or you could try to push back on the question itself. Gorsuch said the point of the discussion was to think through the issues involved.
“Senator, I do ask for a show of hands,” Gorsuch said. “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,” he continued. “I am shocked every year, Senator, how many young women raise their hand,” Gorsuch said adding, “It’s disturbing to me.”
The textbook in question appears to be this one. The final chapter is titled, “The American Legal Profession: Past, Present, and Future.” A subsection of the chapter is labeled “Diversity and discrimination in U.S. law firms” and it includes a section titled “Women” and a Problem titled “The Job Interview.” You can see a screen grab of the contents page below:
Here’s the exchange between Sen. Durbin and Judge Gorsuch.