NPR’s Evolving Story about Professor Gorsuch

March 25th, 2017

Judge Gorsuch’s confirmation hearing was scheduled to begin on Monday, March 20, at 11:00 a.m. On Friday, March 17, one of Gorsuch’s former students at the University of Colorado, Jennifer R. Sisk, sent a letter to the Senate Judiciary Committee. I do not recall seeing anything about the letter during the weekend. On Sunday evening–the eve of the hearing–the National Employment Lawyers Association posted a copy of the letter online. The organization also posted an email exchange between Sisk and the administration, anonymous affidavit from a student who made similar accusations.

A few hours later, at 12:15 AM, hours before Judge Gorsuch’s confirmation hearing began, Arnie Seipel and Nina Totenberg published a bombshell headline on

The story reported:

 “A former law student of Judge Neil Gorsuch, President Trump’s nominee for the Supreme Court, alleges that in a course she took from Gorsuch at the University of Colorado Law School last year, the judge told his class that employers, specifically law firms, should ask women seeking jobs about their plans for having children and implied that women manipulate companies starting in the interview stage to extract maternity benefits.”

In an interview with NPR, Sisk says she wrote the letter “so that the proper questions could be asked during his confirmation hearings,” which begin Monday before the Senate Judiciary Committee. Other students in the class have not come forward publicly.

There is no indication in the story that the authors attempted to corroborate Sisk’s statement with any other students in Professor Gorsuch’s class. NPR (for fairly obvious reasons) did not reference the anonymous affidavit. There is only one reference to a statement from the Trump Administration:

Ron Bonjean, a spokesman for the Trump administration working on the Gorsuch nomination, noted that the judge had consistently gotten among the highest student ratings at the law school.

Granted, reaching out to students hours before the confirmation hearing would have been difficult. But this was not a new story. The author acknowledges that the allegations have been floating around since January.

Sisk raised these concerns publicly in a posting on Facebook in late January, shortly after Gorsuch was nominated by Trump to the high court.

Yet, there was another student who had already come forward. In a letter dated March 19, 2017 (I don’t know what time it was submitted), Will Hauptman, another student in the same class, wrote to “refute [Sisk’s] letter’s veracity.” It is unclear if Seipel and Totenberg were aware of Hauptman’s letter when their story went to press, but by 9:15, the NPR story was updated with five additional paragraphs, buried towards the bottom.

Another student who took the class is disputing this characterization. Will Hauptman, a current law student at the University of Colorado, wrote a letter to the Senate Judiciary Committee with his account on Sunday.

“Although Judge Gorsuch did discuss some of the topics mentioned in the letter, he did not do so in the manner described,” Hauptman writes.

He continued, “The judge was very matter-of-fact in that we would face difficult decisions; he himself recalled working late nights when he had a young child with whom he wished to share more time. The seriousness with which the judge asked us to consider these realities reflected his desire to make us aware of them, not any animus against a career or group.”

In refuting this account, Hauptman writes to the committee that if Gorsuch had made such comments, “I would remember—the statements would have greatly upset me.”

At 10:10, another update was made. The fourth paragraph now asserts up front that there is a contrary opinion:

Other students in the class have not come forward publicly.

Another student in the class has disputed the account in another letter to the committee.

These two sentences, back-to-back, are jarring.

The update also includes a reference to another letter from 11 former female clerks of Judge Gorsuch.

A group of 11 female former law clerks for Gorsuch have also submitted a letter to the committee in support of the nominee.

“We each have lived long enough and worked long enough to know gender discrimination when we see it. Some of us have experienced it professionally on occasion,” they write. “When we collectively say that Judge Gorsuch treats and values women fairly and without preference or prejudice based on their gender, we do not say that in a vacuum. We say it with the perspective of those who know that unfortunately, even in 2017, female lawyers are not always treated as equals.”

The letter goes on to detail how the former clerks say Gorsuch mentored them in their careers. “The judge has spoken of the struggles of working attorneys to juggle family with work obligations; not once have we heard him intimate that those struggles are, or should be, shouldered by one gender alone,” they write.

At 11:25, the article was updated again, and the third and fourth paragraphs were modified:

Other students in the class have not come forward publicly.

Another student in the class has disputed the account in another letter to the committee, and several women who worked for Gorsuch as law clerks have stepped forward in his defense.

There is also a quote from Judge Gorusch’s former clerk, Jane Nitze, who went on to clerk for Justice Sotomayor, and work in the Obama administration.

When she heard these allegations, former Gorsuch law clerk Jamie [sic] Nitze told NPR, “I didn’t know whether to laugh or cry.” Nitze clerked for Gorsuch in 2008-2009, and was one of the 11 former female clerks to sign on to the letter sent to the Senate Judiciary Committee on Monday.

In a statement, Nitze says, in part, “the Judge is usually the first person I go to for career advice. And the first words he has for me when I do are: ‘What can I do to help you?’ The suggestion that he ‘discounts the worth of working females’ is patently absurd.”

At 12:55 p.m., the story was updated again, with a new, far more accurate, headline.

Still, this headline does not acknowledge the contrary statements by Hauptman, who was also in the class.

The revised article also includes an editor’s note (presumably not from Seipel and Totenberg).

Editors’ note 12:55 p.m. ET: Since this story was first published, we have added material from another former student and former law clerks of Gorsuch, as well as more information about Jennifer Sisk’s political affiliations.

Now, the third paragraph highlights Sisks’s Democratic bona fides:

Sisk, once a staffer for former Democratic Sen. Mark Udall of Colorado and the Interior Department during the Obama administration, told NPR that she wrote the letter “so that the proper questions could be asked during his confirmation hearings,” which begin Monday before the Senate Judiciary Committee.

Another student in the class has disputed the account in a letter to the committee, and several women who worked for Gorsuch as law clerks have stepped forward in his defense.

NPR could have located all of this new information before running their bombshell story ten hours before the confirmation hearing would begin. Yet, the article had an impact. During his opening statement on the first day of the hearing, Senator Dick Durbin flagged the letter to Gorsuch, and said “Tomorrow we’ll get to the bottom of it, I hope.”

Over the next 24 hours, a number of Gorsuch’s former students disputed Sisk’s recollection.

CNN later reported that the University of Colorado never notified Judge Gorusch about Sisks’s complaint.

The University of Colorado Law School did not inform Supreme Court nominee Neil Gorsuch of a complaint filed against him last year for his conduct in a class he teaches, the law school dean said Monday. . . .

“In late April and May 2016, law school administrators met with the student to address her concerns and told her the matter would be raised with Judge Gorsuch after grades were submitted for the spring semester,” Dean S. James Anaya said in a statement. “At the end of June, the law school had a transition of deans and, regrettably, preceding that change, no member of the law school administration spoke to Judge Gorsuch about the student’s concern. We apologize to the student who expressed the concern and to Judge Gorsuch for not bringing this matter to his attention last summer.”

This is another statement NPR should have obtained from the Univeristy before running the story. It’s no wonder Judge Gorsuch’s vetting team wasn’t prepared–they were not made aware of it till the eve of the hearing.

During the second day of the hearing, Senator Dick Durbin asked Gorsuch to address Sisk’s letter. He responded, in part:

“The problem is this: Suppose an older partner, woman at the firm that you’re interviewing at, asks you if you intend to become pregnant soon. Your choice as a young person [is] you can say yes, tell the truth…. And not get the job and not be able to pay your debts. You can lie, maybe get the job…That’s a choice, too, that’s a hard choice. You can push back in some way, shape or form. And we talk about the pros and the cons in a Socratic dialogue so they can think through for themselves how they might answer that very difficult question. And senator, I do ask for a show of hands, not about the question you asked, but about the following question and I ask it of everybody: ‘How many of you have had questions like this asked of you in the employment environment, an inappropriate question about your family planning.’ And I am shocked every year, senator, how many young women raise their hand. It’s disturbing to me.  I knew this stuff happened when my mom was a young practicing lawyer, graduating law school in the 1960s. At age 20 she had to wait for a year to take the bar. I knew it happened with Justice [Sandra Day] O’Connor, couldn’t get a job as a lawyer when she graduated Stanford Law School and had to work as a secretary. I am shocked it still happens every year that I get women, not men, raising their hand to that question. Thank you for the opportunity to clarify that.

After that refutation, the story seemed to vanish.

On a personal note, this episode illustrates one of the reasons why I record all of my lectures. For sure, it is a public service for my students, and other students who watch my videos. There is a selfish motive, however. If ever a student accuses me of saying something improper, my first response is “Show me the tape.” As this episode illustrates, students can hear the same lecture, and take home very different messages. This is true for all lectures, but especially for those discussions that touch on sensitive topics. YouTube allows all lectures to be replayed, in context.

Update: Judge Gorsuch’s class discussion was premised on Problem 15-1 of “Ethical Problems in the Practice of Law” (3rd Edition) by Lisa G. Lerman and Phil G. Schrag (I used an earlier version of this text when I took legal ethics).

What will you say?