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

If there is truth to the phrase “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 as a Supreme Court nominee.

Those questions regarding Gorsuch’s hiring practices are of scant concern to the senators on the Judiciary Committee, now finishing up hearings on this Supreme Court. They would appear to also be of scant concern to the news media covering this nomination judging by the lack of coverage of this particular issue.

It isn’t as if the information isn’t available. 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 has uncovered a disturbing pattern.

At 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, who 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.

Now, Gorsuch not hiring any black law clerks is not clear-and-convincing evidence that he 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.

An explanation that Gorsuch cannot find minorities qualified enough for law clerk service smacks of excuse more than acceptable fact. Colorado’s population is only 2% Asian and 4.4% black, but it is 17.1% Latino. And besides, Federal appeals court judges hire their clerks from across America, not just from their home state. Thousands of qualified minorities graduate from American law schools annually, even those that embrace the conservative legal approaches espoused by Gorsuch.

The Supreme Court justice that Gorsuch lauds and is slotted to replace, Antonin Scalia, proudly employed exclusionary hiring: no black law clerks. One of the two U.S. Supreme Court Justices that Gorsuch clerked for following his federal appeals court clerkship also had a record of zero black clerks.

Perhaps the U.S. Senate’s failure, so far, to question Gorsuch’s hiring practices relates to the Senate’s own paucity of top black staff members – less than one percent among 300+ top staffers according to one study.

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Linn Washington, Jr. is a founder of This Can’t Be Happening and a contributor to Hopeless: Barack Obama and the Politics of Illusion, (AK Press). He lives in Philadelphia.

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