If Judge Neil Gorsuch is elevated to the Supreme Court, he could be a voice for corporations for forty to fifty years. His dissent in Transam Trucking, Inc vs. Administrative Review Board, United States Department of Labor is one of many decisions made by Gorsuch that advantaged corporations over working people. Alphonse Maddin, the trucker directly affected by the case, pointed out that seven judges reviewed the case. Only one, Gorsuch, decided that given the wording of the law and Maddin’s situation, he had no choice but to do what he was certain was risking his life or the lives of others or be fired. Why? Gorsuch tells us that his literal interpretation of the law in question meant Maddin was insubordinate when he did not follow the order of his dispatcher who told him to either stay with the trailer or drive it with frozen brakes. Therefore, for Gorsuch it ultimately came down to Maddin either driving in heavy snow with a trailer with locked brakes attached to his truck or possibly succumbing to exposure while waiting for a repair truck to come to him. Instead, Maddin, speech slurring and limbs numbing, decided against the orders of his dispatcher. He unhooked the cab and drove it to a gas station to get help to repair the trailer. For that, Gorsuch decided Transam was within their rights to fire him. (Salon.com has an excellent article fully explaining this case here .)
In Hobby Lobby Stores, Inc. vs. Sebelius, Gorsuch took his decision to a point beyond that of the five conservative members of the Roberts Court. Gorsuch believes that not only a corporation that serves the general public had the “right” to deny a mandated federal healthcare benefit to its employees, but that the owners as individuals also had that right. Gorsuch said, “All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability.” What does this thinking mean? Will he apply this religious test in future and to what? How different is this test of our rights than a test that would be applied to civil law by any other religious interpretation by a fundamentalist? How is this a literal interpretation of our laws, secular society’s laws?
These two decisions alone are enough to lead me to hope that Senate Democrats will use every argument and every procedural possibility to fight this nomination. Majority Leader Mitch McConnell has said he intends to use the “nuclear option” if the Democrats filibuster – he and the Republican Senators will amend the Senate rules to end the filibuster for Supreme Court nominations. That would take away an important tool for any minority party to fight this and all future nominations. So, some are urging the Democrats to “cut a deal,” to accept Gorsuch so they can still have this rule to fight the next nomination that could be worse.
There are two problems with that. First, it is foolish to worry about what’s coming next. No one knows. Gorsuch is now and dangerous. We don’t know if or when additional vacancies will occur or whether Trump’s Russia problems and multiple other corruption issues may paralyze this administration. Second, why would the Democrats believe anything the Republicans offer? Not once since 2009 have they behaved with collegiality. Their behavior toward Merrick Garland was disgraceful. During consideration of the Affordable Care Act and every other major piece of legislation during Obama’s presidency, they have refused to engage in any serious negotiation. Obama made concession after concession on legislation and then they filibustered or voted against the legislation anyway. They cannot be trusted.
Talking about the Transam decision, Sen. Al Franken said it best: “I had a career in identifying absurdity,” referring to his former roles as a “Saturday Night Live” writer and performer, and people in the room briefly burst out in laughter. “And I know it when I see it . . . and it makes me question your judgment.Salon.com here”