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General News    H3'ed 3/27/17

Judge Neil Gorsuch's Hiring Practices: Privilege or Prejudice?

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Message Linn Washington

If there is truth to the phrase that "a man is known by the company he keeps" how should Americans judge Neil Gorsuch, the man President Trump said is the perfect conservative to have a seat on the U.S. Supreme Court?

Judging from the company kept by Gorsuch in the form of the law clerks that he has hired, disturbing questions arise about the core character of this federal appeals court judge.

Those questions regarding Gorsuch's hiring practices seemingly are of scant concern to the Senators on the Judiciary Committee now holding hearings on this Supreme Court nominee and the news media covering this nomination given the fact that those questions are ignored.

A review conducted by the Lawyers Committee for Civil Rights Under Law of persons hired by Judge Gorsuch to serve in the prestigious position of law clerks uncovered a disturbing pattern.

President Trump (r) with Judge Gorsuch (l)
President Trump (r) with Judge Gorsuch (l)
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Near the end of the Lawyers Committee report on Gorsuch's fitness to serve as a Supreme Court Justice, in the section on Judicial Diversity, is this alarming statement arising from the Committee's review of 40 persons Gorsuch hired as clerks: ""we have found no evidence that suggests that Judge Gorsuch ever hired an African-American clerk."

Gorsuch, evidence indicates, also never hired a Hispanic or Native American law clerk since his appointment to the federal Tenth Circuit Appeals Court in 2006. Gorsuch did hire four Asian-American law clerks, a minimalist integration of his overwhelmingly white predominately white male law clerk staff.

Law clerks are young lawyers, generally fresh out of law school, that perform critical duties for a judge from conducting legal research to performing initial reviews of cases the judge has to handle to writing drafts of the decisions on cases the judge will issue.

In some ways, law clerks are mini-judges with power that exceeds the paucity of legal/life experience they possess. (Also, clerking at the federal appellate and Supreme Court levels is widely considered a ticket to career placements and successes in the legal profession.)

Now, Gorsuch not hiring any black law clerks is not clear-&-convincing evidence that his is a racist.

However, hiring practices of the Colorado-born Gorsuch do raise questions about racism because if a hiring pattern like his existed in a private company it would raise arguable red flags regarding illegal discrimination.

There could be race-neutral reasons for Gorsuch not hiring a black, Hispanic or Native American law clerk. But, without Senators asking Gorsuch questions about his hiring practices, explanations about his employment decision-making will never emerge on the public record.

An explanation that Gorsuch cannot find minorities qualified enough for law clerk service smacks of excuse more than acceptable fact. Federal appeals court judges recruit clerks from across America, not just from the states where they work. Thousands of qualified minorities graduate from American law schools annually, even minorities that embrace conservative ideology espoused by Gorsuch.

Gorsuch did find Asian American law clerks despite that group comprising fewer numbers in Colorado than blacks. Hispanics have a population size in Colorado that is more than double that of Asians and African-Americans. It is not clear if Gorsuch is a participant in programs established by the federal courts administrative office to help judges recruit diverse law clerks. Those programs were established to address the quiet scandal of low numbers of non-white law clerks in the federal court system.

A real time/legitimate value of diversity in law clerk staffing is its impact on injecting different insights and non-traditional experiences into the often-insular environment of judging. Diversity among law clerks is a presence that benefits justice and justice should be the purpose of judging.

The failure of Gorsuch to have meaningful diversity among his law clerks undermines proclamations he expressed in his Opening Statement at his Senate confirmation hearing. For example, Gorsuch, in that Statement, said he was dedicated to being "a faithful servant to the Constitution and the laws of this great nation."

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Linn Washington is a co-founder of This Can't Be Washington writes frequently on inequities in the criminal justice system, ills in society and problems in the news media. He teaches multi-media urban journalism at Temple (more...)

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