Senator Franken Demonstrates The Absurdity Of Gorsuch’s Judicial Philosophy And The Dishonesty Needed To Hide It

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:

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Claire De Lune?

clair de lunea very pale blue color…

Dictionary.com

Let me begin by showing you this headline over a Huffington Post story posted on Sunday evening:

Sen. Claire McCaskill Distances Herself From Obama, Senate Democrats

That characterization of McCaskill’s appearance on CBS’s Face the Nation wasn’t a totally accurate one, as you can see by this exchange with the program’s host:

BOB SCHIEFFER: Let me talk a little bit about what [Romney] said on immigration. He said what the Republicans have been saying up on the Hill, the President taking unilateral action on immigration is a poke in the eye like waving a red flag in front of a bull. Are you comfortable with the President taking unilateral action?

SENATOR CLAIRE MCCASKILL: You know I’m not crazy about it. But let me say this, I’ll tell what you a poke in the eye is. A poke in the eye is for the United States Senate almost a year and a half ago passing by a two-thirds majority and a comprehensive immigration bill with Republicans voting for it from places mccaskill on face the nationlike Tennessee and South Carolina that just got re-elected by double digits. And Speaker Boehner has refused to debate one of the most complicated and difficult problems facing our country. They won’t take our bill up. All he has to do next week if he doesn’t want the President to act is take up the Senate bill, amend it, change it, put up your own bill. Let’s get back to doing our work instead of just blaming the President for everything.

I actually don’t see much distance between her and Obama, at least in that statement. I would venture to say that President Obama isn’t exactly “crazy” about the idea of unilateral action either, but he understands the reality of the politics facing him, especially given the fact that next year’s Congress will be even more reactionary than the present one.

But there is some awful truth to the other part of the claim about McCaskill made in that HuffPo headline. Clearly she is distancing herself from some Senate Democrats (many suspect she is going to run for Missouri governor in two years). She was one of only six Democratic senators not to vote for Harry Reid as their leader next year. But even more troubling for me is that she is distancing herself from those Senate Democrats who actually stand for something, who actually stand for what should be important Democratic values. McCaskill made it clear she preferred more “moderate” voices over clearly liberal ones:

BOB SCHIEFFER: Let me ask you this: Elizabeth Warren, the fiery populist from Massachusetts has now been part of the– voted in as part of the leadership in the Senate. How do you feel about that? It’s another woman in leadership. But is this going to leave the impression that the party is moving to the left when a lot of people think the only way that you can get anything done is if both parties move toward the center?

SENATOR CLAIRE MCCASKILL: I think that the leadership team, hopefully, may expand even more with more moderates in it. And by the way the same day that Elizabeth Warren was selected, so was Jon Tester, a flat top farmer from Montana who is about as salt of earth as you can get, and who is a moderate through and through and so his voice is going to be in that room along with Elizabeth Warren’s.

“Moderate through and through,” she said. She admires that. During her campaign in 2012 she emphasized just how moderate she was.  No, she actually bragged about it. Who could forget this commercial:

I have been mostly supportive of Claire McCaskill over the years. I’ve even knocked on doors for her. I know what politics is like here in half-Democrat, half-Republican Missouri. I understand the need for compromise (which she appropriately embraced on Face the Nation). And I wish her luck should she decide to run for governor in 2016. But I confess there is something about that whole moderate thing that just bothers the hell out of me.

Last year McCaskill became an honorary co-chair of Third Way,” a group of “Democrats and Independents” who “believe that America is best led from the center” and who are “highly allergic to the orthodoxies of both the left and right.” They say,

Third Way’s role in these debates is to serve as a centrist counterweight to the forces of polarization and ideological rigidity – forces that serve only to preserve the status quo.

That sounds nice to a lot of people. I know it does. But think about it. What it actually means is that this group of Democrats, presumably including Claire McCaskill (she said on Sunday that she hopes “to be somebody who is driving people to the center”), actually think there is an equal amount of blame to go around for the polarization and ideological rigidity we have seen, especially over the last four years. But there most certainly isn’t an equal amount of blame. Even Claire McCaskill at one time recognized the reality of the situation.

In 2012 McCaskill said that “the far right-wing base of the Republican Party” wanted candidates who believe “we need to turn out the lights on the federal government and go home.” She was absolutely right about that. But no one could say the same thing about the liberal base of the Democratic Party. They actually want candidates who want to govern. It’s what they send them to Washington to do because they actually believe in government. Senator Bernie Sanders, who is a democratic socialist, actually compromises with Republicans, for God’s sake.

So any Democratic group that says it exists “to serve as a centrist counterweight to the forces of polarization and ideological rigidity” has it wrong from the start. And one suspects that something else is cooking, and it doesn’t smell much like working class populism to me.

But there’s more to it than that. As I noted earlier, the Wall Street-backed group of so-called moderate Democrats in Third Way claim they are “highly allergic to the orthodoxies of both the left and right.” That highly suggests they think the visions of the Elizabeth Warrens out there are as extreme and disturbing as the visions of the Ted Cruzes, that the economic populism championed by the senator from Massachusetts is as bad for the country as the know-nothing Tea Party extremism advanced by the senator from Texas.

And if that is what Claire McCaskill believes, she should say so.

-CINCpt_07-18-2014_Enquirer_1_A009~~2014~07~17~IMG_0210_sherrod_brown.j_1_1_.jpgOne Democratic Senator (and one of my favorites) who isn’t afraid to speak up in defense of working class populism is Sherrod Brown of Ohio. Last week in The New York Times he said,

Too many Democrats are too close to Wall Street. Too many Democrats support trade agreements that outsource jobs, and too many Democrats are too willing to cut Social Security — and that’s why we lose elections.

I don’t know if Brown is completely right about why Democrats lose elections. But if the Democratic Party, in the name of “moderation” or “centrism” gets even chummier with fat cats on Wall Street, if the party helps make it even more profitable for American companies to outsource jobs, and if party leadership agrees to additional cuts to social programs, then I will know that the Third Way moderates have won the battle for the soul of my party—and the forces of reaction and regression will make life even harder for the poor and for the working-class, often, we all should be ashamed to admit, the same people.

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[Sherrod Brown photo: AP]
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