Domingo 18 de Noviembre 2018

National Association of Women Lawyers Submits Evaluation of Supreme Court Nominee, the Honorable Neil Gorsuch

CHICAGO–(BUSINESS WIRE)–The National Association of Women Lawyers (“NAWL”) Committee for the
Evaluation of Supreme Court Nominees (“Committee”), Co-Chaired by Ramona
Romero and Dean Camille Nelson, has completed an extensive review of the
qualifications and background of the Honorable Neil Gorsuch, the
Presidential nominee for the United States Supreme Court to fill the
vacancy created by the death of Justice Scalia.1 The
evaluation was sent to Chairman Chuck Grassley, Ranking Member Dianne
Feinstein, and all members of the Senate Judiciary Committee with copies
to Judge Gorsuch and White House Counsel Donald McGahn.

Consistent with the stated mission of the Committee, our assessment
focused on Judge Gorsuch’s personal integrity, professional competence,
and judicial temperament, with “an emphasis on laws and decisions
regarding women’s rights or that have a special impact on women.”2
Our review of over 500 opinions, concurrences, and dissents written by
Judge Gorsuch and articles and books he authored or coauthored led the
Committee to conclude that Judge Gorsuch has outstanding legal ability
consistent with service on the Supreme Court. Similarly, our interviews
of several dozen litigants, former law clerks, former and current
colleagues, and others who have interacted with Judge Gorsuch during the
last three decades persuaded the Committee that he has the highest
reputation for integrity and generally demonstrates a sound judicial
temperament. However, the Committee’s standards require review of each
nominee under several separate evaluation criteria, and the prospective
nominee is found “not qualified” when “the Committee has determined that
the prospective nominee does not meet the Committee’s standards with
respect to one or more of its evaluation criteria – integrity,
professional competence, judicial temperament or
he or she does not demonstrate a commitment to women’s rights or issues
that have a special impact on women.” 3 Judge Gorsuch’s
writings in or about several cases that implicate women’s rights or
interests caused the Committee significant concern. Based on those
writings, in light of the quoted language contained in the Committee’s
standards, the Committee finds that Judge Gorsuch, to date, does not
have a “demonstrated commitment to women’s rights or issues that have a
special impact on women.”4 Because such a demonstrated
commitment is a pre-requisite for a nominee to receive a “qualified” or
“well qualified” ranking from NAWL, the Committee ranks Judge Gorsuch
“not qualified.”

The key issues of concern identified through the Committee’s review of
Judge Gorsuch’s writings fall into two key categories. First, the
Committee is concerned by Judge Gorsuch’s expansive view of religious
rights and of the rights of corporate entities, which has led him to
conclude that the religious rights of individuals and corporations take
precedence over women’s liberty interests, including women’s
reproductive rights. Second, the Committee is concerned by Judge
Gorsuch’s narrow reading of the holdings in key cases where the
application of substantive due process was held to protect individual
liberties of women and minorities.

In our view, Judge Gorsuch has taken an overly expansive view of
religious rights that unnecessarily compromises women’s reproductive
rights in cases where both are at issue. To illustrate the point, the
Committee offers the following examples:

  • In a concurring opinion in Hobby Lobby Stores, Inc. v. Sebelius,
    723 F.3d 1114 (10th Cir. 2013), Judge Gorsuch held that an expanded
    application of religious freedom operates to invalidate the
    contraception coverage mandate of the Affordable Care Act (“ACA”),
    limiting a woman’s reproductive health choices. This opinion expanded
    the theory of religious rights to include corporate decision-making
    and, in so doing, limited the rights of women employees to make their
    own health care decisions.5
  • In Little Sisters of the Poor Home for the Aged, Denver, Colo. v.
    Burwell
    , 799 F.3d 1315, 1317 (10th Cir. 2015), the Tenth Circuit
    Court of Appeals upheld the ACA accommodation allowing
    religiously-affiliated non-profit organizations to submit a form
    opting out of birth control coverage through employer provided health
    plans while ensuring women could nevertheless obtain coverage from
    those insurance plans. In a sua sponte poll for rehearing,
    Judge Gorsuch joined a dissent from the denial of rehearing, which
    argued that the act of submitting the form, itself an attempt to
    balance an organization’s religious freedom and women’s access to
    contraception, violated the plaintiffs’ religious freedom.

In another case, Judge Gorsuch favored what the majority considered an
“unusual procedural move” in an attempt to reverse the entry of a
temporary injunction favoring Planned Parenthood. In Planned
Parenthood Ass’n of Utah v. Herbert
, 839 F.3d 1301, 1302 (10th Cir.
2016), a Tenth Circuit Court of Appeals panel preliminarily enjoined an
order issued by the Governor of Utah that would have defunded Planned
Parenthood. In his dissenting opinion Judge Gorsuch continued to argue
for an en banc hearing, despite the fact that an initial poll of
the judges had failed, neither party had requested an en banc
hearing and the litigants had agreed to a preliminary injunction in
favor of Planned Parenthood.

Judge Gorsuch’s writings also exhibit a reluctance to recognize
precedent that applies substantive due process to protect the rights of
women and minorities.6 In Chapter 5 of his 2006 book titled The
Future of Assisted Suicide and Euthanasia
, Judge Gorsuch argues that
the portions of the plurality opinion in Planned Parenthood v. Casey,
505 U.S. 833 (1992) and the majority opinion in Loving v. Virginia, 388
U.S. 1 (1967) that rely on a due process fundamental liberty interest
can be read as dicta. Judge Gorsuch’s narrow reading of Casey and Loving
is belied by other Supreme Court opinions that also rely on the
existence of a fundamental liberty interest of protecting individual
rights to maintain control over private decisions without government
interference, including those of women and minorities. See, e.g.,
Obergefell v. Hodges
, 576 U.S. __, 135 S. Ct. 2584, 2598, 192 L. Ed.
2d 609 (2015) (acknowledging the right of same sex couples to marry); Lawrence
v. Texas
, 539 U.S. 558, 564, 123 S. Ct. 2472, 2476, 156 L. Ed. 2d
508 (2003) (protecting private sexual choices); Eisenstadt v. Baird,
405 U.S. 438, 453, 92 S. Ct. 1029, 31 L.Ed.2d 349 (1972) (affirming the
right of unmarried individuals to possess birth control); Griswold v.
Connecticut
, 381 U.S. 479, 484–486, 85 S. Ct. 1678, 14 L.Ed.2d 510
(1965) (affirming the right to privacy of married couples in intimate
decision making). The views Judge Gorsuch articulated in this chapter
raise the concern that he interprets abortion rights as resting on
little more than stare decisis, and that his approach to
substantive due process will otherwise mirror the most restrictive views
asserted by members of the modern Supreme Court.

Judge Gorsuch has authored several decisions in gender discrimination
cases and regarding general principles of statutory anti-discrimination
law. In general, his opinions in these cases are written thoughtfully
and respectfully and recognize the difficulties encountered by cisgender7
anti-discrimination claimants even in his opinions issuing adverse
rulings. He has reached defensible positions both in favor and against
women based upon the specific facts of each case. See Strickland v.
United Parcel Service
, 555 F.3d 1224 (10th Cir. 2009) (en banc concurrence
in part and dissent in part) (finding basis for new trial on FMLA claim
but not on Title VII sexual harassment claim); Orr v. City of
Albuquerque
, 531 F.3d 1210 (10th Cir. 2008) (finding factual issues
regarding pretext to support a trial on FMLA and Title VII claims). Yet,
on issues of law, his plain-meaning approach to statutory interpretation
and his reluctance to defer to administrative agencies has caused him to
reject interpretations of anti-discrimination statutes that are
favorable to women. See Elwell v. State of Oklahoma, 693 F.3d
1303 (10th Cir. 2012) (holding under the ADA that employment
discrimination claims cannot be brought under Title II); Almond v.
Unified School District,
665 F.3d 1174 (10th Cir. 2011) (limiting
Lily Ledbetter Act’s long statute of limitations to claims for unequal
pay, as opposed to all compensation-based claims).

The Committee finds that Judge Gorsuch consistently displayed both a
superior intellect and a comprehensive understanding of the issues with
which he was presented. The Committee found his opinions well written,
his analytic abilities impressive, and his judicial reasoning
accessible. Interviewees also affirmed his dedication to “getting it
right,” while also acknowledging the impact of his deeply conservative
legal perspective. Additionally, the Committee’s interviewees said that
the Judge is thoughtful, hardworking, highly prepared, and thorough.
Most interviewees described him as an engaged boss who supported his
colleagues and employees regardless of gender. With a few exceptions,
the interviewees described Judge Gorsuch as intellectually capable of
assuming the role of Supreme Court Justice and his temperament as
appropriate for such an esteemed position. The Committee finds that
Judge Gorsuch has demonstrated the intellectual and analytical talent,
judicial temperament, and professional demeanor required to serve on our
Nation’s highest court.

Nevertheless, because the Committee has found that Judge Gorsuch has not
demonstrate[d] a commitment to women’s rights or issues that have a
special impact on women,”8 we find that he is not qualified
under NAWL’s standard to assume the position of Justice of the Supreme
Court of the United States.

The mission of the National Association of Women Lawyers is to
provide leadership, a collective voice, and essential resources to
advance women in the legal profession and advocate for the equality of
women under the law. Since 1899, NAWL has been empowering women in the
legal profession, cultivating a diverse membership dedicated to
equality, mutual support, and collective success. If you are not already
a member, please considering joining. NAWL welcomes the membership of
individual attorneys, including private practice, corporate, academic,
government and non-profit attorneys, and groups, including law firms,
corporate legal departments, law schools, and bar associations. Learn
more at
www.nawl.org.

________________________________

1 NAWL’s Supreme Court Committee is comprised of
distinguished law professors, appellate practitioners, corporate
counsel, and current and former federal law clerks.

2 National Association of Women Lawyers Manual for the
Committee for the Evaluation of Supreme Court Nominees, p. 1.

3 Id., p. 5 (emphasis added).

4 Id.

5 NAWL joined in the National Women’s Law Center’s Amicus
brief filed in the Supreme Court on appeal from the Hobby Lobby
decision. That brief argued for the reversal of the Tenth Circuit
opinion.

6 See Gorsuch, Neil, The Future of Assisted Suicide
and Euthanasia
, Ch. 5: “Casey and Cruzan: Do They Intimate a Right
to Assisted Suicide and Euthanasia,” (2006).

7 However, Judge Gorsuch participated in decisions issued by
panels of the Ninth and Tenth Circuits that declined to recognize
transgender women as women and, as such, denied them rights that would
be afforded to other women. See Kastl v. Maricopa County Community
College, 
325 Fed. Appx. 492 (9th Cir. 2009) (sitting by
designation); Druley v. Patton, 601 Fed. Appx. 632 (10th
Cir. 2015). These opinions reflect a departure from the approach Judge
Gorsuch has shown in other discrimination matters involving women, and
cause the Committee significant concern.

8 National Association of Women Lawyers Manual for the
Committee for the Evaluation of Supreme Court Nominees, p. 5.

Contacts

National Association of Women Lawyers
Caitlin Kepple, 312.988.6186
kepplec@nawl.org