Why I'm testifying in support of Judge Gorsuch's nomination
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Editor's Note: The following has been adapted from the writer’s forthcoming testimony before the Senate Judiciary Committee on the nomination of Judge Neil Gorsuch to the Supreme Court.

Modern confirmation hearings often produce greater heat than light on the background of nominees. The nomination of Judge Neil Gorsuch is no exception. Past opinions have been cycled through so many partisan spins that their public discussion barely resembles the underlying cases. Like some bizarre version of the game “telephone,” each rendition of prior decisions becomes more distorted and grotesque.

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In reality, the jurisprudence of Judge Gorsuch reflects a jurist who crafts his decisions closely to the text of a statute. That is no vice in the view of many of us. It reaffirms the power of Congress in defining legal rights, privileges, and obligations in our country. Judge Gorsuch clearly recoils at the suggested task of courts to expand on language or enforce agency interpretations that effectively rewrite such language.

 

Many of Judge Gorsuch’s views appear to mirror those of the man he would replace on the Court, Justice Scalia. One major exception, however, would likely be his approach to agency review. Scalia strongly supported the ruling in Chevron USA v. Natural Resources Defense Council. Chevron ironically was a victory for Judge Gorsuch’s mother, who served as the Environmental Protection Agency administrator under Ronald Reagan.

The resulting Chevron doctrine has shaped administrative law and ultimately the federal system as a whole. Judge Gorsuch has warned how federal agencies “concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” In a line that could now become prophetic, Gorsuch declared that courts had to deal with “the behemoth” that is Chevron.

I share Judge Gorsuch’s concerns over the basis and impact of the Chevron doctrine, even though we come from sharply different political perspectives. The Chevron decision proved to be something of a Trojan horse doctrine that arrived in a benign form but soon took on a more aggressive, if not menacing, character for those concerned about the separation of powers. The doctrine on its face is unremarkable and even commendable for a Court seeking to limit the ability of unelected judges to make arguably political decisions over governmental policy.

However, in practice, Chevron has proven a windfall for agencies in advancing their priorities and policies in the execution of federal laws. It is the administrative equivalent of Marbury v. Madison. Rather than declaring courts as the final arbiter of what the law means in Marbury, Chevron practically resulted in the same thing for agencies by giving them the effective final word over most administrative matters.

In Gutierrez-Brizuela v. Lynch, Judge Gorsuch asked a question poignant question: “What would happen in a world without Chevron?” Judge Gorsuch answered his own question: “If the goliath of modern administrative law were to fall? Surely Congress could and would continue to pass statutes for executive agencies to enforce.” The point is that, before Chevron, there was not a period of utter confusion and judicial tyranny in the review of agency decisions.

Courts simply applied traditional interpretive approaches that looked at whether there was an ambiguity or gap in a statute as opposed to clarity on a given question. If so, it then reviewed the agency decision to determine whether it was legal and proper. This analysis was later developed further by the decision in Skidmore v. Swift & Co., where the Court articulated factors to use to decide whether to overturn the particular agency's determinations.

Gorsuch has remained a firm critic of the doctrine, but has applied the doctrine as dictated by the Supreme Court. In Elwell v. Oklahoma, ex rel. Board of Regents of the University of Oklahoma, for example, Judge Gorsuch maintained “whatever Chevron deference we owe to an agency’s interpretations and regulations when a statute is ambiguous, we are never permitted to disregard clear statutory directions in favor of administrative rules.” While the case has been cited as evidence of a hostility to workers, Judge Gorsuch not only wrote for the Court, but his reasoning followed the conclusions of Third, Sixth, and Ninth Circuits.

This approach is also evident in Hwang v. Kansas State University where Judge Gorsuch wrote an opinion affirming the dismissal of a complaint filed by a teacher who had taken a six-month leave to deal with a cancerous condition. After the expiration, she sought additional leave time even though the federal law specifies only a six-month period as required for employers.

Again, Judge Gorsuch wrote for the Court and followed existing case law. Judge Gorsuch and his colleagues declined to follow an Equal Employment Opportunity Commission (EEOC) guideline rather than the language of the statute. He noted that Congress did not impose an open-ended obligation on employers who, after affording the required leave, may decide when or whether to extend additional time to an employee. He stated correctly that the Rehabilitation Act “seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work — not to turn employers into safety net providers for those who cannot work.”

That has been taken as a harsh statement but it is a legal statement. Judges should not read into laws additional periods of mandatory benefits that Congress did not approve. The extension of such obligatory benefits is a matter left to Congress. The extension of voluntary benefits is a matter left to employers. Judge Gorsuch does not strike me as a cold person but rather as a judge who seems to take to heart the words of Edmund Burke who described the "cold neutrality of an impartial judge." We do not want justices who rule by outcome or by passion. We want them to rule by law created by others.

Judge Gorsuch has written at length on the doctrine and related doctrines while on the Tenth Circuit. Some of those cases have been the focus of public debate related to his nomination. The concurrence of Judge Gorsuch in TransAm Trucking, Inc. v. Administrative Review Board, has attracted some of the most heated rhetoric — and in my view some of the least informed commentary — after his nomination.

TransAm Trucking involved Alphonse Maddin who was employed as a truck driver. In January 2009, Maddin was driving cargo through Illinois when the brakes on his trailer froze in the subzero temperatures. He reported the problem to the company and was told to wait for a repairman. Maddin waited for hours but, fearing for his welfare after experiencing a numbness in his feet and legs, again called the company. The company told him to sit tight and not to abandon the load.

Maddin, however, decided to unhitch the truck and drive down the road. The repairman arrived fifteen minutes later and he returned. He filed a complaint with the Labor Department’s Occupational Safety and Health Administration (OSHA), but OSHA dismissed the complaint. However, an administrative law judge and the Department of Labor Administrative Review Board ruled in his favor.

Judge Gorsuch notes dryly that it would be “fair to ask whether TransAm’s decision was a wise or kind one.” However, the entire case turned on a Title 49 provision that forbids employers from firing employees who “refuse to operate a vehicle” out of safety concerns. Judge Gorsuch zeroed in on the basis for treating an order not to operate a vehicle as violating a provision protecting workers who “refuse to operate a vehicle.” He raised the interesting point that the “trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not.”

The facial contradiction between the worker’s actions and the statutory provision, of course, does not answer the question. The case turns on how to interpret the critical words “to operate a vehicle.” Judge Gorsuch rejected the view that there is ambiguity (to trigger Chevron analysis) whenever a term is left undefined in a statute, even terms that are plain on their face. Using standard dictionary definitions, Judge Gorsuch maintained that the meaning of “refuse” and “operate” is neither ambiguous nor supportive in the driver’s case.

Judge Gorsuch ultimately concluded that “the law before us protects only employees who refuse to operate vehicles, period.” Since the employer actually told the driver not to operate the vehicle, he found the provision to be inapplicable. That is not an unreasonable interpretation. Frankly, while I agree with Judge Gorsuch on his Chevron position, I am not sure that I would have adopted as narrow a definition of “operate.” I think that the term can be defined in modern parlance to cover this rather peculiar set of facts in favor of the driver.

However, the alternative view is entirely reasonable and well supported by Judge Gorsuch in his dissent. The employer asked him not to operate the vehicle, a view that may have been reinforced later by questions of the fitness of a driver to operate the vehicle when experiencing numbness in his feet or legs. I did not find the dissent to be dismissive of the driver’s interests, nor biased in the application of the standard for interpretation. It is a textualist approach to the interpretation of federal law that characterizes much of Judge Gorsuch’s jurisprudence.

We stand at a critical crossroad for the country with fundamental changes occurring in our constitutional system. There could not be a better time for the addition of a justice who has a deep understanding and fealty to the original design of our government. I believe that Judge Gorsuch is such a nominee.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University, where he teaches a course on the Constitution and the Supreme Court. He will testify as an expert witness at the Gorsuch hearing before the Senate Judiciary Committee.


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