“Neil Gorsuch got where he is because of a form of affirmative action”

I have written this piece for Washington Post’s “Post Everything.”  It begins:

Judge Neil Gorsuch, whose nomination to the Supreme Court is expected to be voted on by the Senate Judiciary Committee on Monday, is an affirmative action baby. But there’s no reason to believe that if he’s confirmed, his rulings on the high court would reflect the fact that he did not get where he is today solely based on his merits — or extend to others the benefit of a helping hand.

Let’s start with how Gorsuch got to the point of being nominated in the first place. The judge secured a clerkship on the Supreme Court in 1993 after a post-law school year at Oxford University, quite an accomplishment for a new lawyer. But the clerkship began with Justice Byron White. White was known to favor his home state of Colorado, and it was unsurprising that he handed a clerkship to a bright, politically connected fourth-generation Coloradan. White had just retired, though, and a clerkship with a retired justice is not nearly as prestigious as one with sitting justices, because they do not work on Supreme Court cases. As a courtesy to White’s clerks, Gorsuch got to work in Justice Anthony M. Kennedy’s chambers, too — not because Kennedy hired him through a process based only on merit, but instead, because Kennedy wanted to help a fellow justice.

Then there’s the question of how Gorsuch got his seat on the U.S. Court of Appeals for the 10th Circuit. To be nominated for such a prestigious position, it helps to be politically connected. Gorsuch’s mother was a Republican Colorado state legislator and later held a top position in President Ronald Reagan’s administration. Gorsuch was a lawyer to Philip Anschutz, one of the wealthiest people in the state and country, who advocated on his behalf. The conservative billionaire helped push Gorsuch’s case for nomination to the appeals court with President George W. Bush. Gorsuch must be grateful, because even as a 10th Circuit judge, he has continued to speak at off-the-record events for Anschutz.

It concludes:

Adding to the fears about how a Justice Gorsuch would vote on issues of race has been his unwillingness or inability to schedule courtesy meetings with three senators who are all women of color, Tammy Duckworth (D-Ill.), Catherine Cortez Masto (D-Nev.), and Kamala D. Harris (D-Calif.). It is not that these Democratic women are likely to vote for him, but a meeting would be a sign of respect for the Senate and its institutions. Justices Elena Kagan and Sonia Sotomayor, for example, offered to meet with every senator when nominated, and Sotomayor met with 93. This is the last time Gorsuch will be answerable to anyone and have to listen to others’ concerns with a job on the line.

I would just hope, against the available evidence, that he would recognize that laws that try to give others more modest advantages do not violate the Constitution, either as originally understood or properly interpreted for these times.


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