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.
Would Gorsuch have been in the position he is in today if life were a pure meritocracy? Who knows, but I wouldn’t count on it. There are often more qualified people than there are positions.
This is not to say that Gorsuch is unqualified. Far from it. But often, it is not just quality that matters in terms of who gets ahead.
Given Gorsuch’s background, someone like him — like many of us — should count his blessings and realize that aside from his abilities, he was helped by others along the way and could be in a position to pay it forward. He will almost certainly be in that position should he be confirmed to the Supreme Court, where fights over the use of race-based affirmative action in university admissions and hiring will continue to divide the justices over the next few years.
Despite Gorsuch’s background of getting a helping hand, though, I have no confidence that he would see the positive side of extending those benefits to African Americans, many of whose ancestors were slaves in the United States and who are still working to overcome more than a century of discrimination once slavery ended. Other minority groups, too, have faced their own struggles, with many of them or their ancestors fleeing poverty and oppression.
Although Gorsuch has not ruled on issues that tip his hand on race-based affirmative action, people expect he will be a solid vote against their constitutionality. Gorsuch counts himself an “originalist” and a “textualist” in the mold of the late justice Antonin Scalia, whose death opened a vacancy on the court. We know from Supreme Court decisions that Scalia believed — and Clarence Thomas, the other self-described originalist on the court, believes — that virtually all affirmative action programs are unconstitutional under the Equal Protection Clause of the Constitution. Never mind that an honest originalist probably would conclude that affirmative action is consistent with the original meaning of the 14th Amendment’s Equal Protection Clause, as the Congress that passed the 14th Amendment also passed race-conscious affirmative action legislation. More important than being originalist, Scalia, Thomas and Gorsuch appear to share a deep conservatism. It’s the same conservatism that leads Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. to vote to oppose race-based affirmative action, even though they are not originalists.
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.
Race-based affirmative action is visible and divisive, but it offers no more advantages to its beneficiaries than the invisible helping hand that folks such as Gorsuch received. I don’t begrudge him for taking advantage of the opportunities that presented themselves to him as he was pursuing a legal career. He has shined as a legal star after receiving those benefits.
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.