Lawyers' Committee


Lawyers’ Committee for Civil Rights Under Law Releases Report Evaluating Supreme Court Nominee Judge Neil Gorsuch’s Full Record on Civil Rights Cases and Issues Statement to U.S. Senate Urging Full Evaluation of His Record on Civil Rights Matters

More Than 100 Attorneys Across Country Sign Statement Urging Senate to Carefully Examine Nominee’s Record on Civil Rights Matters

MARCH 17, 2017, WASHINGTON, D.C. – Today, the Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee) released its report evaluating the full civil rights record of Supreme Court nominee Judge Neil Gorsuch. The report provides an examination of his record on cases concerning civil rights matters, including voting rights, employment, housing, criminal justice, education and access to justice issues – matters central to the Lawyers’ Committee’s mission. The report is based primarily on the opinions authored or joined by the judge during his time on the Tenth Circuit.

In addition to the report, the Lawyers’ Committee also issued a statement joined by close to 100 members of its Board of Directors located across the country to Senate Majority Leader Mitch McConnell, Minority Leader Charles Schumer, Chairman Chuck Grassley, and Ranking Member Feinstein urging the Senate to closely and carefully examine Judge Gorsuch’s record on civil rights matters.

“The Supreme Court occupies a central place in American democracy as the arbiter of some of the most complex and impactful cases that typically arise across our country,” said Lawyers’ Committee President and Executive Director Kristen Clarke.  “We have carefully evaluated the record underlying Judge Neil Gorsuch’s time on the Tenth Circuit and do not find that he brings a commitment to protecting and safeguarding civil rights.  During the upcoming hearings, the public deserves an opportunity to fully understand his commitment to fair interpretation and application of federal civil rights laws.”

John Nonna, Co-Chair of the Lawyers’ Committee for Civil Rights Under Law, stated “The Senate Judiciary Committee must closely examine Judge Gorsuch’s record to determine whether he truly brings a commitment to fairly interpreting the Constitution and federal civil rights laws.  Our country deserves a Justice who will be faithful to the principle of equal justice under law.”

James Joseph, Co-Chair of the Lawyers’ Committee for Civil Rights Under Law stated, “The Lawyers’ Committee for Civil Rights Under Law is driven by a Board comprised of attorneys from across our country who believe that the Supreme Court plays a special role in our society.  The Senate Judiciary Committee must ensure that Judge Gorsuch will fairly handle all matters that come before the Court, including civil rights matters.”

Since its creation in 1963 at the urging of President John F. Kennedy, the Lawyers’ Committee has been devoted to the recognition and enforcement of civil rights in the United States. While we have seen significant progress, the challenges of unlawful discrimination remain. Recognizing the Supreme Court’s critical role in civil rights enforcement and the central role that the Court plays in our democracy, the Lawyers’ Committee has long reviewed the record of nominees to the Court to determine if the nominee demonstrates views that are consistent with the core civil rights principles for which we have long advocated.

In evaluating nominees to the Court, the Lawyers’ Committee has employed a rigorous standard with two distinct components: (1) exceptional competence to serve on the Court based on education, experience and engagement in the legal system at the highest levels of responsibility, and (2) profound respect for the importance of protecting the civil rights afforded by the Constitution and the nation’s civil rights laws based on a large body of civil rights opinions or comparable information from statements and activities other than service on the bench.

In its report, the Lawyers’ Committee for Civil Rights Under Law expresses grave concern about Judge Gorsuch’s narrow understanding of the rights that are protected by the Constitution and his skeptical view about the importance of the federal court’s role in protecting those rights. The report notes that in his criminal justice decisions, Judge Gorsuch takes a narrow view of constitutional rights, particularly Fourth Amendment rights. The report also raises regarding his views on educational opportunities and students with disabilities. In addition, the report notes that Judge Gorsuch has written a number of opinions on employment law issues in which he has generally affirmed district court decisions dismissing claims asserted by people of color, women, and disabled people. The Lawyers’ Committee also observed that the Senate must explore Judge Gorsuch’s commitment to fairly interpreting and applying laws such as the Voting Rights Act of 1965.

A copy of the report is available here.  A letter signed by more than 100 members of the Board of Directors of the Lawyers’ Committee for Civil Rights Under Law can be found here.


Lawyers’ Committee for Civil Rights Under Law

On March 8, 2017, the United States Court of Appeals for the Ninth Circuit ruled that the Dodd-Frank Wall Street Reform and Consumer Protection Act’s anti-retaliation protections extend to whistleblowers who report employers’ SEC violations internally, regardless of whether they report the violations to the SEC.  In Somers v. Digital Realty Trust, Inc., No15-17352, slip op. (9th CirMar. 8, 2017), a divided panel of the Ninth Circuit sided with the Second Circuit in an emerging split among the federal courts of appeals.  The circuit courts’ dissension stems from the proper interpretation of the word “whistleblower” under Section 21F of the Dodd-Frank Act, 15 U.S.C. § 78u-6(h)(1)(A)(iii), which prohibits employers from discriminating against whistleblowers in the terms and conditions of their employment because of their lawful disclosures under the Sarbanes-Oxley Act of 2002 or another SEC rule or regulation.

In Somers, the Ninth Circuit followed the reasoning of the Second Circuit in Berman v. Neo@Ogilvy LLC, 801 F.3d 145 (2d Cir. 2015), and construed the provision broadly, to afford protection to internal whistleblowers.  The Somers Court emphasized the remedial purposes of the Dodd-Frank Act and “Congress’s overall purpose to protect those who report violations internally as well as those who report to the government.”  No. 15-17352, slip op. at *4.  “Reading the use of the word ‘whistleblower’ in the antiretaliation provision to incorporate the earlier, narrow definition would make little practical sense and undercut congressional intent.”  Id. at *10.  The Ninth and Second Circuits’ decisions stand in stark contrast to the Fourth Circuit’s decision on this issue in Asadi v. G.E. Energy (USA), LLC, 720 F.3d 620 (5th Cir. 2013), wherein the Fourth Circuit ruled that protection extends only to individuals who report employer violations outside their organizations, directly to the SEC.

The SEC, the agency charged with enforcing the provision, issued guidance at 17 C.F.R. § 240.21F-2, clarifying its position that a whistleblower need not report information to the SEC to qualify for protection under the Dodd-Frank Act.  Generally, an agency’s interpretation of a statute it is charged with enforcing is due heightened deference.  However, given the current administration’s promise to dismantle the Dodd-Frank Act, the SEC may change its position.  The deepening circuit split and looming changes in SEC guidance make this issue a likely candidate for Supreme Court review.

Click here to read the Ninth Circuit’s full opinion.


Article written by Bernabei & Kabat Associate, Kristen Sinisi