Washington Post Publishes the Worst Analysis Yet of Neil Gorsuch’s Confirmation Fight

The prize for the worst analysis to date about the confirmation of Judge Neil Gorsuch to the U.S. Supreme Court should be awarded to Professor Richard Hasen of the University of California–Irvine Law School. Professor Hasen’s evolution from a serious legal scholar to a partisan mudslinger is now sadly complete. 

That is the only conclusion to be drawn from his April 2 Washington Post editorial, “Neil Gorsuch got where he is because of a form of affirmative action.” In it, Hasen calls Judge Gorsuch “an affirmative action baby” who did not “get where he is today solely based on his merits.” According to Hasen, Judge Gorsuch’s remarkable career is a product of Justice White’s affinity for law clerks from his home state, Justice Kennedy’s charity, political connections, and wealthy clients. To call Hasen’s charges unfounded would be more charitable than his baseless speculation deserves. But Judge Gorsuch’s sterling achievements and well-earned success at every stage of his career need no defense from me or any impartial observer. 

What does merit a response is Hasen’s attempt to use his baseless speculation about Judge Gorsuch as a launching pad for a defense of affirmative action. Remarkably, Hasen’s convoluted argument makes one of the best cases against race-based preferences anyone has seen in a very long time. Hasen’s thesis is that simply by knowing the circumstances of Judge Gorsuch’s life — being a Coloradan, having a politically active mother, and representing powerful clients — one can label him an “affirmative action baby.” But these kinds of assumptions are of course what make racial preferences so pernicious. In Hasen’s view, for example, every African-American graduate from an Ivy League school is presumptively an “affirmative action baby” who did not gain admission on merit. As Hasen says: “There are often more qualified people than there are positions.” So, in his eyes, race must have played a role. Quite accidentally, then, Hasen proves Justice Clarence Thomas’s point: “These programs stamp minorities with a badge of inferiority,” and in so doing, “undermine the moral basis of the equal protection principle.”

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