Family planning, employment and SCOTUS nominee Neil Gorsuch

There is an interesting debate afoot about Trump's nominee to the empty seat on the US Supreme Court, Neil Gorsuch. It started with this article, a story about a letter from a female law student, Jennifer Sisk, to the chair of the committee holding the nomination hearings. In her letter, Sisk expressed her concerns about professor Gorsuch's suggestion in a class she attended, that employers should ask women about their family plans at the job interview. Here is the summary:

Donald Trump’s Supreme Court nominee Neil Gorsuch reportedly told law students that employers should ask women seeking employment about their plans for having children, and also implied that women manipulate companies in order to extract maternity benefits.

What makes that article a bit of a controversy is that at the the head of the article, above a photo of Trump and Gorsuch, there is a link to another article embedded in the text, "reportedly said". Gorsuch supporters I debated on Google+ pointed out that Gorsuch "reportedly said" that employers should ask women about their plans to have children to protect their businesses. That article is on the NPR website and documents some of the contention of the events leading up to the controversy. There are apparently different accounts of what actually happened.

11 former female clerks who used to work for Gorsuch also sent a letter in support of Gorsuch. I guess they're hoping they can work for Gorsuch again, but this time, at the US Supreme Court. What I find notable is the following passage briefly describing an NPR interview with Jennifer Sisk:

Law professors often ask provocative questions in the course of teaching. When asked if that's what Gorsuch may have been doing, Sisk told NPR: "It wasn't what he was doing. This was second-to-last class, hadn't been the style he had been using to sort of raise issues all class, or all semester."

She added, "He kept bringing it back to that this was women taking advantage of their companies, that this was a woman's issue, a woman's problem with having children and disadvantaging their companies by doing that."

So the incident was important enough for 12 women to write about to the chair of the committee holding a confirmation hearing and the issue was important enough for Gorsuch to reinforce a policy bias in at least one class. At the very least, he's setting an expectation that women will be asked about their family plans by employers so that employers can protect themselves. Protect themselves from what? More customers?

The issue was important enough for the committee to ask questions concerning the incident described in Jennifer Sisk's letter. You can find video of the exchange between Senator Dick Durbin and Neil Gorsuch here. If you watch the video, you find Gorsuch citing a standard texbook he uses for class and asks the same question of his class every year. This was not a one-time event, and that fact alone would contradict those who say it never happened.

In consideration of this nomination, it's worth noting also that Gorsuch has been characterized as another "Scalia", according to Wikipedia:

At the time of the nomination, Gorsuch was described as solidly conservative, but likely to be confirmed without much difficulty. Richard Primus of Politico described Gorsuch as "Scalia 2.0" due to ideological similarities, and a report prepared by Lee Epstein, Andrew Martin, and Kevin Quinn predicted that Gorsuch would be a "reliable conservative" similar to Scalia. (footnotes removed)

Justice Antonin Scalia was nominated by President Reagan and sat on the bench as a Supreme Court Justice for nearly 30 years, actively promoting a conservative agenda. That conservative agenda has helped to stagnate wages for 30 years and effectively disconnect wages from productivity for both CEOs and workers (guess who saw the upside). That conservative agenda has helped to keep women at a disadvantage in the workplace. That conservative agenda helped to foment huge transfers of wealth through through huge bubbles, like the housing bubble of 2007 and the stock bubble of 2001. That same agenda has relentlessly sought cuts in social safety net programs. That same agenda continues to prevent Americans from making paid parental leave a matter of national public policy.

Once again, we see public policy heading in the opposite direction of American polling. A poll conducted by the Deseret News during the election last year showed strong support of social safety net programs and parental leave as a matter of law. That poll also shows that Americans are acutely aware that family leave, whether to care for a newborn or an elderly parent, scores zero in national public policy, and that we are an exception to all other industrialized countries. According to Pew Research, 41 other countries provide paid parental leave as a matter of law.

The lack of paid parental leave as a matter of law is merely a continuation of a well documented attack on job security that has been ongoing since at least the Reagan Administration. Even former Federal Reserve Chairman, Alan Greenspan could see and made it clear to Congress way back in 1997, that job insecurity cannot be a permanent tool to increase productivity while at the same time, subduing wage growth:

If heightened job insecurity is the most significant explanation of the break with the past in recent years, then it is important to recognize that, as I indicated in last February's Humphrey-Hawkins testimony, suppressed wage cost growth as a consequence of job insecurity can be carried only so far. At some point, the tradeoff of subdued wage growth for job security has to come to an end. In other words, the relatively modest wage gains we have experienced are a temporary rather than a lasting phenomenon because there is a limit to the value of additional job security people are willing to acquire in exchange for lesser increases in living standards. Even if real wages were to remain permanently on a lower upward track than otherwise as a result of the greater sense of insecurity, the rate of change of wages would revert at some point to a normal relationship with inflation. The unknown is when this transition period will end. (emphasis mine)

Has anyone noticed that the transition period referred to by Mr. Greenspan never happened? Employers continue to expect the current wage trend to be the new normal and yet still see productivity gains as before. Economist Dean Baker has provided ample documentation to support his contention that compared to the 1950s, 60s and 70s, productivity has been relatively flat. While relieving us of the scary robots story that mainstream media has been harping on, he points out the fact that despite advances in automation in the last decade or two, productivity growth still remains flat:

Job displacement means productivity growth. If the piece is correct then we are about to see a massive upsurge in productivity growth. The recent pace has been just 1.0 percent annually. The authors presumably envision productivity growth rising to something like the 3.0 percent annual rate we had in the long Golden Age from 1947 to 1973, a period of low unemployment and rapidly rising real wages.

And that was just two days ago in response to a NY Times article suggesting that we'll see big growth in the economy with Trump at the helm. So since at least 1997, key policy decision makers were aware of a trend that workers have endured continuing assaults on their job security. Jennifer Sisk's letter exposes a continuation of the assault on job security and the employment bias against female workers. Her letter exposes a bias on the part of Judge Gorsuch against female workers and for big business. That bias continues today, productivity growth be damned.

If Neil Gorsuch is concerned that women might manipulate a company to get paid leave for maternity he needs only to look at the public policy actions he has supported as a member of the judiciary and an ideal replacement for Antonin Scalia as noted by Justin Haskins at The Hill:

It’s true Gorsuch is unquestionably a devoted constitutional textualist and originalist in the mold of Scalia. Sen. Ted Cruz (R-Texas), one of the most conservative politicians in Washington, D.C., called the pick “an absolute home run” in an interview with CNN. Erick Erickson, a longtime outspoken conservative and critic of Trump, wrote in an article posted on his political commentary site, The Resurgent, “Judge Gorsuch is the one nominee who matches Antonin Scalia’s intellectual pedigree and will unite all the factions within the Republican Party. … It is rock solid.”

Given the character of Gorsuch, if nominated, I think we can expect a continuation of his disingenuous sympathy for women like Sandra Day O'Connor who had to work as secretary due to this subtle form of discrimination against women. Despite his expressions of sympathy, as a Supreme Court justice Gorsuch will continue making contributions to worker insecurity to discourage women from "manipulating businesses for paid parental leave".

I think Gorsuch acts in this way not as a matter of conscious personal preference, but in support of public policy for the conservative agenda he represents. A sort of cognitive dissonance that a man like him is privileged enough to enjoy.