The confirmation of Justice Neil Gorsuch to the Supreme Court of the United States was a contentious one. I think he was a good choice and will be a good justice, though not because of his stance on abortion, gun control or any other topic du jour. Rather, I think he will serve us well because he will adhere to the text of the Constitution and will refrain from making policy.
Now that a bit of time has passed, I wanted to revisit a particular issue raised in those confirmation hearings. During those hearings, liberals expressed outrage at then-Judge Gorsuch’s opinion in a case called TransAm Trucking, Inc. v. Administrative Review Board. This was particularly true of Senator Al Franken. Many of you may remember Sen. Franken from his SNL days playing the character Stuart Smalley and more recently for being a sitting U.S. Senator who went on national television and said that the President of the United States is suffering from a mental illness.
Although Sen. Franken did not attend law school, he is nonetheless on the Senate Judiciary Committee. Sen. Franken is not alone in being a non-attorney on that important committee. He is accompanied by the democrats’ ranking member Dianne Feinstein and republicans Jeff Flake, Thom Tillis, Ben Sasse and Chairman Chuck Grassley. For those of you keeping score, of the 20 members of the committee responsible for granting life tenure judgeships to nominees, 30 percent have never been to law school.
That is perhaps indicative of how Congress works. As of March 13th, 2017, there are 55 Senators holding law degrees according to a report by the Library of Congress’ Congressional Research Service. That means there are 41 Senators not on the Committee who are more qualified than the 6 listed above to read the complex legal writings; interpret court rulings in the context of prior and contemporary jurisprudence; and knowledgeably interview the nominees for these lifetime appointments of incredible power. This immense power has been on display recently as ordinary district court judges have struck down directives of the President of the United States.
Knowledge of the Law & Separation of Powers
The Frozen Trucker case really brings to the fore both Sen. Franken’s lack of understanding of the Federal Judiciary and our own understanding of the importance of the separation of powers. The Frozen Trucker case involved a truck driver whose brakes froze while transporting cargo in Illinois. The truck driver was told by his employer, TransAm, that help was on the way and to not leave his truck and its cargo. Unfortunately, in addition to losing his brakes, the heater in the truck also went out. The trucker, beginning to feel the early effects of hypothermia, abandoned the cargo in search of warmth. He was fired by TransAm for disobeying their order.
The truck driver alleged that TransAm violated federal law 49 U.S.C. § 31105(a)(1)(B) which makes it illegal to fire someone for:
“refus[ing] to operate a vehicle because
(i) the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety, health, or security; or
(ii) the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition”
**(the pertinent language is in bold)**
In his dissent, Judge Gorsuch read this statute and found that the trucker did not “refus[e] to operate” the vehicle. He in fact did the opposite. He disconnected the truck from the trailer and operated it (drove) all the way to safety. You can read the full opinion on the 10th Circuit’s website (Judge Gorsuch’s Dissent begins on page 19).
Sen. Franken was horrified by the Gorsuch dissent (relevant portion ends at 13:21):
The full line of questioning by Sen. Al Franken during Judge Neil Gorsuch’s supreme court confirmation hearing.
Sen. Franken’s argument is basically, that it was unfair to require the trucker to choose between his safety and his job. He’s right. It is unfair and TransAm should never have put the trucker in that position. I will even go a step further: The law should not have allowed TransAm to do what it did. However, it is not Justice Gorsuch’s fault that the truck driver was faced with that dilemma. Rather, the fault lies with Sen. Franken and his colleagues in the Senate and House of Representatives.
The Legislature is responsible for creating policy like whether a truck driver can be required to stay with his cargo when he is in physical danger. That’s lawmaking. It is entrusted to Congress because we can hold them accountable. When they do something stupid like pass a statute that allows a company to force a person to choose between his job and his safety, we can vote them out of office.
On the other hand, federal judges are not elected and have life tenure. When they make stupid laws, there is no direct action we as voters can take to get rid of them. That is why they are in the business of interpretation and cannot be in the business of making law. They interpret the laws passed by Congress and they interpret the Constitution. They do not amend them (at least, they are not supposed to).
The problem Sen. Franken seems to obstinately refuse to understand is that the Judiciary can only interpret the laws Congress gives them. If Congress passes an unfair law, it is not up to judges to make those laws fair. Rather, after seeing people hurt by an unjust law, Congress must repeal or amend the law. If they don’t, we can vote them out and their successors will.
Sen. Franken also mentioned the Absurd Result Doctrine (ARD). I had cause to research the ARD for a case I had some time ago. Rather than go into what would be a very long, complicated and boring explanation of the Doctrine, I can only tell you that it does not apply to this situation, (Sen. Franken’s pamphlet notwithstanding). Apparently the attorneys for the truck driver agreed because they did not present it as an argument to the Court.
I would note here that, although Sen. Franken was outraged by Judge Gorsuch’s literal interpretation of 49 U.S.C. § 31105, as of today neither Sen. Franken nor his colleagues have introduced a bill to change the language of the statute to protect the truck driver.
(Photo: Getty Images)