By Meg Wagner
‘Protecting the company’ from manipulative women?
On the eve of Supreme Court nominee Neil Gorsuch’s confirmation hearing, one of his former students alleged that the would-be justice suggested to a law class that “many” women manipulate their employers for maternity benefits — and then insisted that companies should ask female job candidates about their pregnancy plans before hiring them.
While The Pregnancy Discrimination Act of 1978, a supplement to the Civil Rights Act of 1964, forbids employers from discriminating against pregnant women, it does not explicitly ban employers from asking questions about a candidate’s family or future pregnancy plans. (The law only bans making hiring decisions based on the answers.) The Equal Employment Opportunity Commission has frowned on the practice, writing in guidelines that employers “should not make inquiries into whether an applicant or employee intends to become pregnant.”
Jennifer Sisk, a 2016 graduate of the University of Colorado Law School, sent a letter on Friday to the Senate Judiciary Committee, which began its hearing on Gorsuch’s nomination Monday morning.
According to Sisk’s account, Gorsuch was teaching a legal ethics class at the school in April 2016 when he turned a general conversation about professional lawyers’ work-life balance into a discussion focused specifically on pregnant women.
“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,” she wrote in the letter, which was published by the National Women’s Law Center Sunday night.
When only a few students raised their hands, Gorsch grew “animated” and protested by saying, “C’mon guys,” Sisk wrote. “He then announced that all our hands should be raised because ‘many’ women use their companies for maternity benefits and the leave the company right after the baby is born.”
Gorsuch then detailed how hiring managers, especially those at law firms, should ask female job applicants about their plans to have kids to “protect the company.”
At least one other student in the class disputed the claim, saying that while Gorsuch brought up the issue of maternity leave, he was merely exploring “the tension between building a career in a time-intensive profession and starting a family and raising children — especially for women.”
The National Women’s Law Center said Sisk’s original letter and the dispute against it must be investigated in Gorsuch’s hearings.
Mum on gun rights and abortion
In January, President Donald Trump nominated Gorsuch to fill the late Justice Antonin Scalia’s seat on the U.S. Supreme Court, which has been vacant for nearly a year because Senate Republicans refused to hold a hearing for Merrick Garland, former President Barack Obama’s nominee.
Republicans lauded Gorsuch’s nomination. While the judge has not spoken out directly on hot button conservative issues, such as gun rights and abortion, he has a track record of conservative values. Plus, pro-Second Amendment and anti-abortion activists have insisted that his history of constitutional originalism will mean he’ll support their causes since there’s explicit weapons protections and no mention of abortion in the original document text.
While an appeals court judge in 2013, Gorsuch ruled in favor of craft supply store chair Hobby Lobby, which claimed it should be exempt from the Affordable Care Act’s “contraception mandate” that requires employers to cover employees’ birth control through health insurance plans, due to the owners’ religious beliefs. The Supreme Court later upheld Gorsuch’s decision.
In another decision showing his pro-religious liberty opinions, he sided with a Wyoming inmate who sued to use a sweat lodge while incarcerated, claiming he needed access to it as part of his Native American religion.
Before he was confirmed as a U.S. Court of Appeals judge in 2006 under President George W. Bush, Gorsuch worked as a high-ranking Justice Department official. There, he defended controversial Bush-era terrorism policies, including the potentially abusive interrogation of detainees.
The nuclear option
Tensions over Gorsuch’s nomination — specifically, his replacement of Garland, Obama’s nominee — flared in the first hour of his confirmation hearing Monday. Sen. Dianne Feinstein (D.-Calif), the top Democrat on the Senate Judiciary Committee, invoked the shunned judge in her opening statements.
“We’re here today under very unusual circumstances,” she said. “Merrick Garland was widely regarded as a mainstream moderate nominee.”
Liberals have demanded that Senate Democrats block Gorsuch’s confirmation as a sort of retribution for Senate Republicans’ refusal to confirm Garland. Senate Minority Leader Chuck Schumer (D-N.Y.) has not called on his colleagues to do so — but the party could unite as the confirmation hearing rolls on, especially if outside pressure mounts.
“The Senate should refuse to confirm anyone President Trump nominates to the Supreme Court — until Trump re-nominates and the Senate confirms Judge Merrick Garland,” former Clinton Justice Department official Dawn Johnsen demanded.
At least 60 senators must vote to end debate and hold a final vote on Gorsuch’s nomination. There are 52 Republicans in the Senate, meaning that eight Democrats (or two of the Independents who caucus with them) would need to side with Republicans and vote to confirm the to the Supreme Court.
On the other hand, even if the Democrats do rally in a bid to block Gorsuch, Republicans can ram his confirmation though the committee. They could invoke then the “nuclear option,” a Congressional maneuver that would change the 60-senator supermajority to a simple majority, a number that the Republicans already have.
Both parties traditionally refrain from using the option because it encourages partisan divide that could spill over into other votes later — but Trump has already given Republicans the greenlight.
“If we end up with that gridlock I would say if you can, Mitch, go nuclear,” Trump said, referencing Senate Majority Leader Mitch McConnell (R-Ky.). “That would be an absolute shame if a man of this quality was caught up in the web.”