The Supreme Court Nomination Hearings for Judge Gorsuch - Guest Post by the Hubby

At my office, I’ve been streaming the confirmation hearings of Judge Neil Gorsuch.  Well, I HAVE taken some breaks to listen to “More Life” – an album that achieves the apotheosis of my 16 year old self: the beach level of Mario Kart music with hip hop lyrics… seriously, listen to Passionfruit and Ice Melts and tell me that stuff isn’t straight lifted from a MIDI file.  BUT OTHERWISE I’ve had all hearings all the time streaming through my desktop.  As I still fancy myself a bit of a constitutional scholar, I find this stuff pretty interesting.  And as luck would have it, the bat signal was lit yesterday inquiring into my point of view on this process. (ONE request!!!)   And as I’ve never passed up an opportunity to share an opinion before, I thought I better not start now.

In a post where my electoral predictions have not aged well, I pointed out that I have not yet been alive during a period when the Supreme Court was “controlled” by judges appointed by Presidents from the Democratic Party.  This has had the effect of producing absolutely devastating consequences.  Justice Antonin Scalia, the jurist who Judge Gorsuch will replace on the Court, joined or wrote opinions that said closely-held companies can have protected religious beliefs, that corporations have rights just like people, and that George W. Bush would become the 43^rd President of the United States because, despite everything he had ever written in his entire life up to that point, deference should be paid to the federal, rather than state, government.  And the difference between Bush and Gore as president led to millions of deaths, both direct and indirectly, including a member of my wife’s family.  And Justice Scalia wasn’t even the worst justice on the bench (that “honor” will, hopefully, always reside with Justice Thomas, and man we knew wasn’t qualified at the time and continues to show his unworthiness).  So I know all about how important this stuff is.  I feel how important this is.  I still well up when I think about November and December of 2000. 

All that is to say, Judge Gorsuch won’t be a Thomas.  He won’t even be a Scalia.  But he’s no Ginsberg, either.  We’ll get to that later.  Let’s start with some general stuff.

This first round of questions has been fairly unsurprising.  What you usually see is one Party (the Party of the President) lobbing softballs and spinning yarns that create a joyful and wistful mood.  Take a look at Senator Cruz’s interaction with Judge Gorsuch.  

Asking a Hitchhiker’s Guide to the Galaxy question? Asking him about his hero?  This isn’t unusual.  Democrats did it with Judge Kagan et al.  But it doesn’t help us at all.  Both Parties should be asking challenging questions.  The point of the nomination process is to ensure that the nominee is qualified for the job, an enormous job at that.  As Bill Belichek would say: DO YOUR JOB.  Oh well.  I’ll get off the soapbox for now.

Conversely, the other Party (Democrats now) will do everything they can to ensure they know what they are voting on.  The first thing I noticed was something I think we all knew but hoped we could confirm: Judge Gorsuch is no dummy.  This wasn’t some brainless twit, a daft happy-go-lucky in over his head, or someone who has no self-awareness. He flatly stated he could rule against the man nominating him, drew smart delineations between making policy and fulfilling the requests of him employer/clients while an attorney, urged anyone who spent “dark money” endorsing him to disclose what they spent, deflected gender bias accusations with skill and grace, indicated the Muslim ban is unconstitutional (obviously) and reiterated his respect for Judge Garland.  These things matter for appearances, but are ultimately useless for determining anything substantive.  On the other hand, appearances matter.  Let me explain.

Judge Gorsuch said The Donald’s attacks on the judiciary are “demoralizing” and “disheartening.”  It’s an obvious win-win.  Everyone with a brain agrees with him and he gets the benefit of trashing the man who nominated him, thus establishing his “independence.”  That statement will put political pressure on Democrats in the Senate.  I.e.: Gorsuch is not so bad.  Look! – he thinks The Donald is a dangerous fool, too!   But that doesn’t tell me anything about his judicial philosophy, motivations for the Court, or ability to separate partisan preferences from potential rulings.

So, sometimes the Senators used their time to lecture Judge Gorsuch.  I think this is pretty outdated, personally.  We’re in a post-fact world.  We now reside in a world where someone can say something and not be held accountable in any way for doing/saying/being the opposite.  (George H.W. Bush lost his second presidential election because of "no new taxes"; John Kerry likely lost the 2004 election because of a vote for the second Iraq war but rhetoric on the campaign against it – COULD YOU IMAGINE THAT STANDARD TODAY?)  The lecturing doesn’t presuppose that the nominee hasn’t heard the argument – Judge Gorsuch knows, for example, that large companies can capture agencies and that he shouldn’t let that happen.  Senator Whitehouse, who lectured on this, knew that.  And when Judge Gorsuch said, emphatically, “Nobody will capture me,” the Senator got what he wanted.  A clip to attach to a commercial or some kind of ad for when Judge Gorsuch makes a ruling that makes it seem as if he HAS been captured.  Well, that doesn’t work anymore. Not when Sean Hannity can just go on TV, say some bullshit, and all of his sheep follow him.  (Yes, that Hannity link is to literally everything Hannity has ever said that is on Youtube.  That was on purpose).  

So what HAS mattered so far?  Well, the big thing in the news is actually the thing that does matter (for once).

The “frozen trucker” case.

Last August, Judge Gorsuch filed a dissent in Transam Trucking.  The short version is that a trucker’s brakes on his trailer froze.  The temp was -14.  He was on the interstate west of Chicago.  He pulled over and called for help from the employer’s road service.  They told him to wait for help.  He did, for 2 hours, falling asleep and awaking by a call from his cousin to find that he couldn’t feel his feet and his torso was tingling.  He called again. They said sit tight.  He waited another 30 minutes and said “screw this – I’m not dying out here” – he unhooked the trailer and went to a gas station to warm up. 15 minutes later, help arrived.  The company fired him for abandoning the trailer.

The Department of Labor found that the termination was illegal.  49 U.S.C. § 31105(a)(1)(B) forbids employers from firing employees who “refuse to operate a vehicle” out of safety, health or security concerns.  

Judge Gorsuch said the trucker operated the vehicle.  He didn’t refuse to operate it.  He wasn’t fired because he refused to operate an unsafe vehicle.  He was fired because he abandoned the trailer.  

Jesus Mary and Joseph that’s some stone-cold shit.  You should watch the full 8 minutes with Senator Franken, (a guy who has turned into a hell of a Senator) because, through sheer human-ness, he demonstrates to Judge Gorsuch just how horrible that dissent was.  

Senator Franken, plainly and clearly, explains how the Judge could have EASILY used the exception to the plain-language doctrine to rule in the trucker’s favor.  The exception is that “when the plain language of the statute creates an absurd result, you must look to legislative intent.”  In this instance, the trucker’s choice was risk death for himself (if he stayed), death to himself and others (if he drove on with the trailer), or lose his job (unhitching the trailer and going to warm up).  That’s patently absurd.  And the legislative intent was clearly to protect workers from injury, and, obviously, death.  This would have been a very easy solution that any 1^st year lawyer would understand.  Judge Gorsuch chose not to go that route.  It isn’t that he didn’t know it was an option.  He chose not to go that route.

Had he gone that route, he’d have had to write a concurring opinion to that effect (the majority, other two judges, went with Chevron deference, something Judge Gorsuch thinks sucks).  No more work than a dissent.  So, it begs the question: WHY?  Why did he choose a dissent?  Heck, he could have drawn a distinction as to the vehicle, writing that the trucker wasn’t, in fact, driving the vehicle because it wasn’t a COMPLETE vehicle.  There are a number of things Judge Gorsuch COULD have done that would be in line with his stated judicial philosophy and ruled for the trucker.  But he did not.

And that should be the subject of a lot of national discussion.  Especially because Judge Gorsuch has spent a lot of time these past three days talking about how he WOULD NOT LET HIS OWN FEELINGS creep into his job.  How politics PLAYS NO PART in the judiciary.  And that he's OFFENDED YOU WOULD EVEN THINK THAT.  Except, this case came down to a 2-1 decision, and the other two judges were appointed by President Clinton and President Obama.  This was completely a personal choice.  Again, he could have used a simple exception, or split hairs on a definition, and not betrayed some larger judicial philosophy.  He chose not to.  He chose to side with the company over an employee who almost died for that company.  Why?

I’m not saying this dissent should disqualify him.  That would be insane.  But the Democrats are ultimately going to have to do one of two things: Either allow a vote and all the Dems vote against Judge Gorsuch (48 nays) as a protest because that seat should belong to Judge Garland, or don’t allow a vote (forcing the Senator McConnell to blow up the filibuster) because that seat should belong to Judge Garland and there are concerns that Judge Gorsuch isn’t a “mainstream” judge.  The first option is an endorsement of his legal capabilities.  The second should only occur if they discover something so awful as to disqualify him immediately (see Hill, Anita; Saturday Night Massacre).    

For perhaps the first time in my life, I’m glad I’m not a United States Senator for the Democratic Party.  This is hard.  Very hard.  Judge Gorsuch checks all the boxes.  He is certainly qualified.  But we know that someday he’s going to author a devastating opinion.  Based on this trucker case, it’ll be something along the lines of holding that a private company can wage war with a foreign government, or some other such batshit crazy sounding thing that favors corporations.  (If you don’t quite understand, if you had told someone in 1991 that Justice Thomas would one day choose the President of the United States, they would have though you were nuts, or when I was in law school, if you’d told me the 2^nd Amendment guaranteed private citizens a right to own a firearm, I would have laughed my ass off it was so crazy – these things have a habit of happening).

So, yes.  Judge Gorsuch will one day do us harm.  But his plethora of opinions seem to indicate he’ll be one of the “better” ones (see Roberts, John).  I can’t be sure, of course.  And I’m looking forward to seeing other cases that the Democrats highlight.  I will be sure to check in and add any thoughts that I find to be significant to the voting outcome.  But as you watch this unfold, try to pick out the coddling (by Republicans) the lecturing (by both parties) and the real significant stuff (by Democrats).  Try to figure out why a Senator is lecturing, what he or she is trying to get out of it.  Try to project the significance of opinions, concurrences, and dissents that the Dems dig up.  That’s how you’ll get closer to understanding what kind of jurist Judge Gorsuch will be on the Supreme Court.  I think anyone reading this can figure it out just about as well as I can.  Just don’t go to Fox News or HuffPo because it’ll cloud your judgment.  You don’t need them.  You just need the information.  Get that from CSPAN or the live-stream.  Or blurbs from real news outlets.  Not the opinion pages.  We’d all be a lot better off.  And a lot more informed.

Also, and I swear this happened, Judge Gorsuch said "bigly."  He fucking said "bigly." I have no words...