Judge Neil Gorsuch: Likable, but dangerous
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Given what I’ve read in the press, Neil Gorsuch seems like a nice person — the sort I wouldn’t mind grabbing a beer with.

But confirming justices for lifetime positions on the Supreme Court should not — and cannot — be a popularity contest or about personality alone. Our Constitution demands that the Senate fully examine the record and judicial philosophy of the nominee. By that measure, the Senate must reject the nomination of Neil Gorsuch.

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Much has been said about Judge Gorsuch the person. A family man, proud of his faith. A Republican who has hired from across the political spectrum. A conservative who has gay friends.  

 

All of this makes for an interesting profile, but it fails to fully capture and reflect Gorsuch the jurist. The judge who puts the interests of the powerful and the wealthy above ordinary people.  One who ignores the time honored legal concept of respecting the constructs of binding precedent.

Simply put, he lacks the impartiality and independence the American people expect and deserve from the Supreme Court.

One need only consider the source of this nomination — the ideologically driven Federalist Society and Heritage Foundation. The 21 pre-approved candidates for the Supreme Court were handpicked by these groups because they have a judicial philosophy that, in our view, will jeopardize the rights and protections of the most vulnerable who need them the most. The prospective nominees did not get on that list because they are good dinner companions.

Conservative groups are now engaging in a multi-million-dollar ad campaign to ensure that their hand-selected nominee for the Supreme Court is confirmed.  This is not an altruistic act — they want a justice who will side with their interests and support their agendas.

Judge Gorsuch has already delivered.  As a judge on the federal appeals court, he has shown a consistent favorable treatment of employers and corporate defendants, and a reflexive rejection of workers’ rights claim.

In TransAm Trucking, Inc. v. Administrative Review Board, Gorsuch ruled against Alphonse Maddin, a long-haul trucker whose truck broke down in the middle of a freezing January night in Illinois. The truck heater didn’t work and Maddin got so cold that he developed breathing problems and couldn’t feel his feet or torso.  Nonetheless, his boss ordered him to wait in the truck until a repairperson arrived.

After waiting for three hours, Maddin finally drove off in the truck and left the trailer behind, in search of assistance. His employer fired him a week later for violating company policy by abandoning his cargo. The majority ruled that the firing was unlawful, but Judge Gorsuch dissented and, even at the risk of serious injury, said the employee should have followed orders.

In Compass Environmental, Inc. v. OSHRC, the majority held that the employer must pay a fine for disregarding an internal policy and failing to train a worker who was electrocuted to death by high-voltage lines located near his work area. Judge Gorsuch issued a dissent and voted to throw the case out of court because he believed the Labor Department failed to show evidence that the industry norm would have required more training than the worker received.

Judge Gorsuch’s judicial philosophy was also on display last year in the case Gutierrez-Brizuela v. Lynch, where he issued a lengthy concurrence to an opinion he himself had written — a signal that his colleagues refused to sign on to his ideological agenda.

In his concurrence, he questioned the constitutional legitimacy of a decades-old binding precedent, Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc.

The Chevron doctrine requires deference to federal agencies’ interpretation of ambiguous laws as long as the interpretation is reasonable, which has resulted in the safeguarding of workers’ rights, environmental protection, consumer protections, food safety, and many other protections for people’s health and well-being.

Judge Gorsuch wrote that judges should make these decisions instead of agencies with the relevant expertise, which will likely lead to favoring corporate interests over individual rights.

Given the current political climate, it is paramount that our next Supreme Court justice ensures a strong and independent judiciary.  Judge Gorsuch has demonstrated in his opinions and writings that he is results-oriented and would be highly unlikely to show independence from a president who shares his ideological agenda. Why else would President Trump have picked him?

From workers’ rights to LGBT rights, from protecting students with disabilities to protecting the environment, from voting rights to police misconduct, Judge Gorsuch’s decade-long record demonstrates he is a judge with an agenda. That agenda, unfortunately, is not in the interest of those who need the courts to protect them the most.

Judge Gorsuch may be a nice guy, but as a judge, he has twisted the law in ways that have not been so nice to those whose cases and causes he disfavors. He must not be confirmed to the highest court in the land.

Wade Henderson is president and CEO of The Leadership Conference on Civil and Human Rights.


The views of contributors are their own and not the views of The Hill.