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By Chris Opfer
Some Democrats said they’re concerned about U.S. Supreme Court nominee Neil Gorsuch’s strict reading of the law, pointing in particular to a recent case involving a Chicago truck driver fired after his trailer broke down on a cold winter night.
“It is the Supreme Court that will have the ultimate say on whether employers will be held accountable for discriminating against workers or failing to protect workers when they’re harmed or killed on the job,” Sen. Dianne Feinstein (D-Calif.) said March 20 during the first day of Gorsuch’s Judiciary Committee confirmation hearing. Feinstein and Sen. Richard Durbin (D-Ill.)—the panel’s top-ranking Democrats—said Gorsuch’s dissenting opinion in TransAm Trucking made it unclear whether he would live up to that responsibility.
The U.S. Court of Appeals for the Tenth Circuit ruled last year that TransAm Trucking Inc. wrongly fired Alphonse Maddin for unhitching his trailer and driving away instead of hauling it or waiting in an unheated cabin in subzero temperatures for a repair person. Gorsuch in a dissenting opinion said the driver wasn’t covered by a law protecting whistle-blowers in the transportation industry because he was fired for leaving the trailer, not for refusing to haul it.
The case is likely to help shape the debate in a confirmation hearing expected to span days. Gorsuch will eventually need the support of at least eight Democrats to get the 60 Senate votes needed to be confirmed to the bench.
Democrats griped about Gorsuch’s skepticism of the deference courts often give federal agencies. Many also took the opportunity to complain that Republican leadership last year refused to allow a vote on the Merrick Garland, who former President Barack Obama tapped for the same Supreme Court seat.
Gorsuch told the committee members that judges shouldn’t act as “secret legislators” who interpret the law however they like. Several GOP panel members agreed, praising him for his limited approach to judicial power.
Gorsuch also thanked former Supreme Court Justice Antonin Scalia, whose seat Gorsuch would fill on the bench, for reminding lawyers that “words matter.” He said Scalia showed that “the judge’s job is to follow the words that are in the law, not replace them with ones that aren’t.”
Maddin was transporting cargo in Illinois when the brakes stopped working on the trailer and he noticed that the heating system in his cab was also on the fritz. He ditched the trailer, Gorsuch’s colleagues on the Tenth Circuit panel said, after reporting the incident to a supervisor and waiting for several hours overnight for a repair person to arrive on the scene.
Maddin eventually left the trailer when he began to feel numb from the cold, despite being told by a supervisor to either continue hauling the trailer or stay with it. TransAm later fired Maddin for abandoning the trailer.
The Tenth Circuit said in a 2-1 decision that TransAm violated the Surface Transportation Assistance Act, which protects transportation workers who complain about inadequate safety measures on the job. The two judges upheld the Labor Department’s interpretation of the law to include a driver who refuses to operate a vehicle because of safety concerns.
Gorsuch said in his dissenting opinion that Maddin didn’t refuse to operate his vehicle, because he continued to drive the truck after ditching the trailer. Instead, Gorsuch said, Maddin was canned for operating his truck improperly: by unlatching the trailer and leaving it by the side of the highway.
“It might be fair to ask whether TransAm’s decision was a wise or kind one,” Gorsuch said. “But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.”
Durbin and other Democrats during the first day of the confirmation hearing accused Gorsuch of elevating words over substance to twist the decision in favor of TransAm.
“See, there was no heater in the truck, and according to his recollection, it was so cold, it was 14 degrees below,” Durbin said of Maddin’s incident. “Not as cold as your dissent, Judge Gorsuch, which argued that his firing was lawful.”
Lawmakers on both sides of the aisle noted that Gorsuch is likely to play an important role in deciding the big-ticket legal issues of the day if appointed to the bench. That includes a number of potential labor and employment disputes.
Sen. Sheldon Whitehouse (D-R.I.) said Gorsuch’s confirmation could mean that the high court is asked to revisit a recent case in which a deadlocked 4-4 court let stand an appeals court decision permitting public sector unions to collect agency fees from nonmembers. He also said Gorsuch may be involved in cases testing the limits of mandatory arbitration agreements in employment contracts.
Republicans, on the other hand, praised Gorsuch for judicial restraint. They said his work on the Tenth Circuit showed that he understands that judges are expected to interpret the law, not make it.
“An impartial judge focuses on the process of interpreting and applying the law, according to objective rules,” Sen. Orrin Hatch (R-Utah) said. “In this way, the law—rather than the judge—determines the outcome.”
To contact the reporter on this story: Chris Opfer in New York at firstname.lastname@example.org
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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