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

Will he remember that if he makes it to the Supreme Court?

By Richard L. Hasen 

April 3

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.

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