Just hours before Judge Neil Gorsuch's Supreme Court confirmation hearings were set to begin, the media breathlessly reported an eye-brow raising revelation: Gorsuch had once told a law class he was teaching that women “manipulate” maternity leave.
The news, revealed in a letter from one of Gorsuch's former law students, quickly splashed across the internet, with headlines in NPR, NY Magazine, NBC, and publications with predominantly female audiences like Cosmopolitan and Glamour. Rolling Stone is already posing the question: “Does the Likely Next Supreme Court Justice Support Pregnancy Discrimination?”
The timing of this prejudicious news, designed to revive the old 'war on women' narrative at a critical time for Gorsuch's nomination, isn't accidental. Yet the story is so poorly constructed that it falls apart even after an expeditious reading of the allegations. In layman's terms: it's sloppy.
The background of the letter's author is enough to raise some skepticism. The author, Jennifer Sisk, has some experience in Democratic politics. Per her LinkedIn account, Sisk both worked in the Obama Administration and was a staffer for Democratic Senator Mark Udall. That, of course, isn't reason to dismiss her allegations - but her partisan background suggests her intentions and is certainly something to keep in mind.
Few, if any, of the stories mention this. But let's go on.
According to Sisk, Gorsuch was teaching a class called Legal Ethics and Professionalism, discussing a hypothetical scenario about a female law student in debt and planning to start a family applying for a job at a law firm. What is she obligated to tell her future employers and what do they have a right to know?
It's certainly a though-provoking - and controversial - question. It was during this discussion that Gorsuch allegedly insisted that many women take advantage of companies with generous maternity leave benefits and then quit. He “targeted females,” as Sisk phrased it in her letter:
Instead, he asked the class to raise their hands if they knew of a female who had used a company to get maternity benefits and then left right after having a baby. Judge Gorsuch specifically targeted females and maternity leave. This question was not about parents or men shifting priorities after having children. It was solely focused on women using their companies...
Judge Gorsuch's comments implied that women intentionally manipulate companies and plan to disadvantage their companies starting from the first interview.
A fellow classmate of Sisk's has already written a letter pushing back on Sisk's version of the story. “Although Judge Gorsuch did discuss some of the topics mentioned in the letter,” he wrote, “he did not do so in the manner described.” There also doesn't seem to be a shortage of former law clerks for Gorsuch - both men and women - defending him.
Nevertheless, Gorsuch's opponents no doubt hope to turn this incident into a conversation about the nominees' views on women and maternity leave. It may be an exaggerated story, Judge Gorsuch, but while we're on the topic...
But here's the biggest aspect here that, so far, has been completely underreported - this alleged incident took place in an ethics class which are, by design, built around discussions of controversial issues and critical thinking about potential real-life dilemmas. Anyone who has taken an ethics class - I have - can tell you that the discussions, while thought-provoking, sometimes take turns that would raise eyebrows on someone who didn't have the context.
With that in mind, ask yourself: was Gorsuch using the podium to espouse his views on women and pregnancy discrimination? Or was he using a hypothetical scenario to encourage his students to think critically about a situation they may one day encounter as legal counsel for the employee...or the employer?
He'll no doubt be asked to answer during his confirmation hearings, but I'd place my money on the latter.