Neil Gorsuch is Donald Trump’s appointment to the Supreme Court. Like many of the president’s picks for top offices, Gorsuch has come under intense scrutiny by the public, politicians, and his peers.
Wednesday was the second day of the federal appellate judge’s testimony before the Senate Judiciary Committee. The Committee is charged with determining how fit Gorsuch is for one of the highest legal offices in the land.
Democrats were very skeptical about the appointment on Monday, with several bringing up controversial decisions from some of Gorsuch’s past cases. The tone changed yesterday, with legislators seemingly resigned to the reality of confirmation.
“This is a job interview,” said Senator Al Franken, a Democrat from Minnesota. “You are applying for lifetime appointment to the highest court in the land.
“There’s so much at stake here,” he continued. “What we’re worried about is another 5-4 Roberts Court making one decision after another that hurts workers … that hurts consumers.”
Falling in step with Franken’s criticisms and call for action, Sen. Sheldon Whitehouse of Rhode Island urged Gursuch, if confirmed, to consider overruling the 2010 Citizens United decision. The Citizens United ruling paved the way for corporations to finance independent campaigns for their preferred candidate and has been cited by liberal critics as a prime example of the meddling power of money in politics.
Gorsuch has come under fire in the past for being too insensitive and rigid in his interpretation of the law.
“You’ve told us time and time again, ‘No place for my heart here. This is all about the facts, this is all about the law,’” said Sen. Dick Durbin, D-Il. “I don’t buy that. I don’t think the decisions of courts are so robotic, so programmatic that all you need to do is look at the facts and look at the law, and there’s an obvious conclusion.”
NPR and Michigan Radio aired parts of the hearing late Wednesday evening and hosted special guests who discussed Gorsuch’s legal philosophies of originalism and textualism. True to Durbin’s dig at the appointee’s black-and-white view of the law, originalists believe that legal doctrine should be interpreted according to the original intent of its author. Gorsuch shared a similar perspective with the late Justice Scalia, with both men looking at the Constitution and taking its words literally and at face value – sometimes with little regard for decisions made later on in American legal history.
Senator Al Franken wasn’t shy in confronting Gorsuch about how far the judge would be willing to take the law down to the letter.
Gorsuch, as an appellate judge for a federal circuit court, wrote a dissenting opinion in 2016 which Franken derided as “absurd.”
The opinion ties back to the case of Alphonse Maddin, a former truck driver for TransAm. Maddin’s trailer brakes had frozen, forcing him to pull over on the side of a highway. Radioing in to the office for advice, he was told by dispatch to stay with the trailer until a roadside crew could come and provide assistance.
Hours went by. Maddin dozed off and awoke to a frighteningly cold cabin and a broken heater. With a numb torso and no feeling in his feet, the driver tried to contact the roadside crew and his supervisor, both of whim told him to “hang on in there.”
He waited for another 30 minutes before detaching the trailer and going to find a place to warm up.
TransAm fired Alphonse Maddin for disobeying orders and abandoning his trailer, despite the severity of weather conditions and dangerously low temperatures.
The Surface Transportation Assistance Act prohibits employers from firing employees who “refuse to operate a vehicle because … the employee has a reasonable apprehension of serious injury to the employee or the public.”
Since Maddin had operated a vehicle rather than refusing to do so, Gorsuch claimed in his dissenting opinion that TransAm hadn’t wrongfully terminated his contract and could either have illegally dragged his trailer and load to the destination or waited for help to arrive. Gorsuch wasn’t impressed by the trucker’s story of sitting in an unheated and dangerously cold cab for three hours.
As the Senate Judiciary Committee continues its work in deciding whether to confirm Neil Gorsuch for the U.S. Supreme Court, it will further examine the man’s opinions on legal theory, past decisions, and judicial ethics.
Given that Republicans hold enough sway in the Senate to overcome a filibuster, Gorsuch’s most vocal critics seem already to be quieting down and coming to terms with his probably confirmation.