Bench Memos

Law & the Courts

Fellow Students Refute Student’s Claim of Sexist Gorsuch Comments

NPR reported yesterday that Jennifer Sisk, a “former law student of Judge Neil Gorsuch, … alleges that that in a course she took from Gorsuch at the University of Colorado Law School last year, the judge told his class that employers, specifically law firms, should ask women seeking jobs about their plans for having children and implied that women manipulate companies starting in the interview stage to extract maternity benefits.”

But a slew of students who took the same ethics course from Gorsuch—some in the same class as Sisk—are powerfully refuting her claim. From their accounts, it seems quite clear that Sisk (who has Democratic ties) was misunderstanding Gorsuch’s devil’s-advocate posturing of hypotheticals.

In a letter to the Senate Judiciary Committee, Baker Arena, a student in the same class as Sisk and a self-described “liberal feminist Democrat,” explains:

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.

Ruthie Goff, who took Judge Gorsuch’s legal ethics class in 2015, writes (link to come):

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.”

Will Hauptman, who was also in the same legal ethics class as Sisk, has also written to the Committee to “refute the … veracity” of Sisk’s claim:

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. Among those challenges were balancing our desire to perform public service with our need to pay off student loan debt, and the tension between building a career in a time-intensive profession and starting a family and raising children—especially for women. The judge was very matter-of-fact in that we would face difficult decisions; he himself recalled working late nights when he had a young child with whom he wished to share more time. The seriousness with which the judge asked us to consider these realities reflected his desire to make us aware of them, not any animus against a career or group. And despite the soberness that these topics sometimes imparted on the class, our conversations were always respectful and cordial.

It is clear that my classmate and I have a different account of what happened in class. But had Judge Gorsuch truly made the statements described in the letter, I would remember—the statements would have greatly upset me. And I would not be writing you in support of the judge if I felt he would not treat all people with equal dignity.

Jordan Henry, a female student who took Judge Gorsuch’s ethics class in the fall of 2016 (one semester after Sisk), tells the Committee that Sisk’s allegations “in no way reflect my experience with Judge Gorsuch as a professor and a mentor.” In what seems like a discussion of the same textbook hypothetical, Henry writes:

I recall a day in class that was devoted to diversity and some of the issues that face women and others in the profession. 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. He prepared us to confront these issues when they arise.

Catherine Holgrewe, who took Judge Gorsuch’s ethics class, has issued this statement (link to come):

Judge Gorsuch was an exemplary professor and treated every student with absolute respect. He took an active interest in our educational and professional success. Judge Gorsuch always made time in his busy schedule to further discuss class materials and offer professional advice and support. I have never heard Judge Gorsuch ever speak disrespectfully to or about anyone. 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. 

Nathan Davis, another student in Sisk’s class and “a life-long Democrat,” attests (link to come):

I have no recollection of Judge Gorsuch acting in the manner described in the letter, nor do I remember Judge Gorsuch making any insensitive or chauvinistic remarks at any point during the semester. I was fully aware that my professor was a federal judge and am certain that I would recall such outlandish behavior. Nothing I witnessed at any point gives me any reason to question Judge Gorsuch’s moral fitness to serve on the Supreme Court. 

Kate Waller, who took classes in both legal ethics and antitrust from Judge Gorsuch, states (link to come):

[Judge Gorsuch] never demonstrated anything but the utmost respect and integrity for all students and viewpoints. Judge Gorsuch believed in unbiased, well-reasoned arguments, and never appealed to emotions or politics.

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.

Glen Matthews writes (link to come) of Judge Gorsuch’s ethics course:

Every week Judge Gorsuch did what was expected from him in the Ethics class he taught at the University of Colorado School of Law. I was a student in his class my final semester of law school. 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. 

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