The Senate Judiciary Committee today voted to move the confirmation of Judge Neil Gorsuch to the full Senate. The New York Times also reported that “Democrats Now Have Votes To Filibuster Gorsuch Nomination.” It will be an interesting week.
When she announced her opposition to the confirmation of Neil Gorsuch, Senator Claire McCaskill wrote:
I cannot support Judge Gorsuch because a study of his opinions reveal a rigid ideology that always puts the little guy under the boot of corporations. He is evasive, but his body of work isn’t. Whether it is a freezing truck driver or an autistic child, he has shown a stunning lack of humanity.
“He has shown a stunning lack of humanity” is, well, a rather stunning statement about anyone nominated to the Supreme Court. But if you look at the two cases she cited, a reasonable person can conclude that humanity comes in a distant second to Gorsuch’s strange judicial philosophy and the record that accompanies it.
I want to focus on the freezing truck driver case, decided just last year in Gorsuch’s 10th U.S. Circuit Court of Appeals in Colorado. The case involved a company called TransAm Trucking and one of its drivers, Alphonse Maddin. The driver eventually won his case, and here’s how the judges who ruled in his favor summarized the bare facts involved:
In January 2009, Maddin was transporting cargo through Illinois when the brakes on his trailer froze because of subzero temperatures. After reporting the problem to TransAm and waiting several hours for a repair truck to arrive, Maddin unhitched his truck from the trailer and drove away, leaving the trailer unattended. He was terminated for abandoning the trailer.
Below I have posted Senator Al Franken’s discussion of this case today during the Judiciary Committee hearing, as he gave his reasons for opposing Gorsuch’s confirmation (which echoed McCaskill’s concern about Gorsuch siding with corporate interests over the interests of people). You will not find a more powerful argument against confirming Gorsuch. If you needed no other reason—and there are plenty—to oppose the nomination of an “originalist” or “textualist” Judge Gorsuch, the case of the freezing truck driver would be enough. Before you watch the short clip below, I want to share with you part of Gorsuch’s dissent in the case:
A trucker was stranded on the side of the road, late at night, in cold weather, and his trailer brakes were stuck. He called his company for help and someone there gave him two options. He could drag the trailer carrying the company’s goods to its destination (an illegal and maybe sarcastically offered option). Or he could sit and wait for help to arrive (a legal if unpleasant option). The trucker chose None of the Above, deciding instead to unhook the trailer and drive his truck to a gas station. In response, his employer, TransAm, fired him for disobeying orders and abandoning its trailer and goods.
“It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.
Senator Franken discussed that last bit of nonsense from Gorsuch, since, after all, the judges who sided with the truck driver were also applying the law. So something made them apply the law one way and something made him apply it another. What was it? Was it merely a fondness for corporations over people? Or was it a flaw in his judicial philosophy? I want to share with you something Joplin blogger Jim Wheeler wrote the other day, defining Gorsuch-Scalia judicial philosophy magnificently:
Originalism…amounts to attributing to the founders a kind of vision they could not possibly have had and it denies to the law the application of common sense…
As you will see in the video below, Senator Franken’s passionately makes the point that whatever it is that Gorsuch uses to interpret the law and decide cases, common sense has nothing to do with it. And because common sense has nothing to do with it, absurdity—and the need to be dishonest to hide the absurdity—is the result. Watch: