It was an honor to testify yesterday before the Senate Judiciary Committee on the nomination of Tenth Circuit Judge Neil Gorsuch to be an Associate Justice of the Supreme Court. The National Women’s Law Center’s full report is here. And here is what I said to the Committee.
My name is Fatima Goss Graves and I am Senior Vice President for Program and President-Elect of the National Women’s Law Center. Since 1972, the Center has been involved in virtually every major effort to secure and defend women’s legal rights. I thank you for your invitation to testify today and ask that my written testimony and the Center’s report on Judge Gorsuch’s record be submitted for the record.
Over the past few days, Judge Gorsuch has talked a lot about how he follows the law rather than his personal views and treats all people as individuals. But his record shows that time and time again, his approach to the law gives the benefit of the doubt to employers, politicians, and other powerful entities, rather than the vulnerable individuals who rely on the law for protection. And time and time again, this approach disadvantages women.
Take the case of Betty Pinkerton, an administrative assistant whose sexual harassment claim was dismissed. Judge Gorsuch ruled against Ms. Pinkerton on the grounds that her failure to report the harassment for all of two months was unreasonable. During that period she had to listen to her boss question her about her sexual habits and her breast size. Under Title VII, these sorts of remarks only become a pattern of harassment as they add up over time. If she complained too early – she’d have no claim. Wait two months, under Judge Gorsuch’s approach, again no claim. This is an approach that ignores the workplace realities that the law is designed to address.
Or take the Hobby Lobby case, in which a corporation challenged the Affordable Care Act’s birth control benefit, which requires health insurance plans to provide birth control coverage with no cost sharing. Access to contraception allows women to plan their lives and their futures, and the benefit relieves women of a steep financial burden, which can run as high as $1,000 in upfront costs.
Judge Gorsuch joined the 10th Circuit in holding, under the Religious Freedom Restoration Act, that an employer’s religious beliefs could override employees’ right to birth control coverage, including an especially extreme holding that promoting gender equality and public health – the very goal of the birth control benefit – were not compelling government interests. His concurring opinion was stunning in its refusal to even acknowledge the health impact and financial burden on the women who would lose insurance coverage under his approach.
Ultimately that case reached the Supreme Court. And unlike the decisions joined and written by Judge Gorsuch, the Supreme Court instructed that as part of RFRA’s balancing test, courts must consider the impact on women. Judge Gorsuch’s record also shows hostility to the Constitution’s protection of the most personal and intimate decisions, which is the basis for the rights to birth control and abortion.
Yesterday Judge Gorsuch declined to say whether Roe v Wade was correctly decided, merely acknowledging that it is a precedent of the Court. He refused to answer key questions about other areas of the law that are core to women’s lives. He was questioned about letters from former students who claimed that he had suggested companies can and should ask women – and only women – about their pregnancy plans in order to protect corporate interests.
Even in explaining the incident, Judge Gorsuch shockingly refused to acknowledge that such behavior would violate Title VII. To be clear, statements like these are wildly at odds with the letter and purpose of Title VII—as well as the Family and Medical Leave Act. Finally, we reviewed Judge Gorsuch’s record against a highly unusual backdrop, including promises by President Trump that his nominee would vote to overturn Roe and would be selected from lists approved by the right-wing Heritage Foundation and the Federalist Society—a highly unusual occurrence, to say the least.
When you put those extraordinary promises together with the Judge’s record and his refusal to provide anything but platitudes about his judicial philosophy to this Committee, there is only one possible conclusion: Judge Gorsuch’s record demonstrates that he would fulfill the President’s political promises and, if he is confirmed, women would feel the devastating impact of his decisions for generations to come.