Gorsuch Is No Help to Stranded Truck Driver

      Alphonse Maddin was driving a tractor-trailer through Illinois in subzero temperatures in January 2009 when the brakes on his rig froze up. He called a dispatcher for a repair. But he was still waiting nearly three hours later, numb from the cold because of a non-working heater, when he decided to unhitch the trailer and drive the cab to a heated service station.
      TransAm Trucking fired Maddin for disobeying instructions to stay with the trailer or drag it to the nearest service station despite the inoperable brakes. But a U.S. Labor Department administrative law judge (ALJ) found that the company had violated whistleblower protections in the Surface Transportation Assistance Act by retaliating against him for reporting the safety issue and refusing the order to drive the vehicle in an evidently hazardous manner.
      Maddin may sound like the kind of working-class American who helped Donald J. Trump win the presidency expecting no longer to be forgotten. When Maddin's case reached the federal appeals court in Denver, however, Trump's nominee for the Supreme Court turned a deaf ear to his plight. The Tenth U.S. Circuit Court of Appeals majority in the case upheld the ALJ's ruling that the company owed Maddin back pay and had to clear his personnel file of any negative findings about the episode.
      Dissenting, Judge Neil Gorsuch argued that the truck safety law prohibited a company from firing an employee only for a refusal because of safety concerns to "operate" the vehicle. Maddin had not refused to operate the vehicle, Gorsuch argued, but had instead chosen to operate it contrary to instructions in a manner that he deemed safe for himself and the cargo.
      The court's decision in TransAm Trucking, Inc. v. Administrative Review Board drew scant attention when issued last summer [Aug. 8, 2016]. In a telling coincidence, however, two sets of lawyers reviewing Gorsuch's record in advance of his confirmation hearings next month [March 20-23] both spotted the case and saw Gorsuch's dissent as an indication of his likely stance on business and labor cases if confirmed for the lifetime post.
      Lawyers with the Leadership Conference on Civil Rights called Gorsuch's dissent an example of his "favorable treatment of employers and corporate defendants" and his "reflexive rejection of workers' rights claims." Three lawyers with the corporate law firm Orrick, Herrington & Sutcliffe, on the other hand, praised Gorsuch's dissent as an example of his commitment to "textualism" in statutory construction and his refusal to uphold administrative agency interpretations "untethered from the statutory language itself."
      Attorneys Rachel Apter, Bob Loeb, and Paul David Meyer concluded in their 2,500-word paper that Gorsuch's confirmation would help return the Supreme Court to its "business-friendly leanings." They cited other Gorsuch opinions, some of them in dissent, to suggest that he would give corporate defendants more tools to block class action suits, limit liability for securities fraud, and favor enforcement of mandatory arbitration clauses against workers or consumers. Gorsuch's vote on those issues, the lawyers write, "could often be decisive."
      The civil rights lawyers instead read Gorsuch's record as "out of the mainstream of legal thought." His record on the bench, along with writings and speeches, "demonstrate that he is a judge with an agenda," the civil rights group said in a six-page evaluation, even when precedent dictates a contrary result. The report notes other Gorsuch's opinions unfavorable to plaintiffs in five separate workers' rights cases, four of them in dissent.
      The Lawyers' Committee helped organize a total of 107 other civil rights groups to sign on to the negative evaluation and to urge "all senators" to oppose his nomination. Besides his judicial record, the letter notes Gorsuch's article written for National Review in 2005 before his appointment to the bench criticizing "American liberals" for what he called their "overweening addiction to the courtroom as the place to debate social policy . . . ."
      "Judge Gorsuch's hostility to the use of courts by discrimination victims to enforce their rights under the Constitution and federal law demonstrates his ideological agenda," the civil rights groups state. With the court "closely divided on many critical issues," they warn, Gorsuch "would tip the balance in a direction that would undermine many of our core rights and legal protections."
      The civil rights groups also point critically to Gorsuch's votes in two high-profile decisions to allow employers to evade the Obamacare requirement to include coverage for contraceptives in health benefit plans based on religious objections. Among other decisions, they note his majority opinion in a 2013 case rejecting a constitutional claim against a police officer who fatally tased a fleeing 22-year-old suspect. The officer shot the youth in the head rather than the back, as taser training materials instructed except in high-risk cases.
      The business lawyers note favorably Gorsuch's decade in private practice as a commercial litigator before taking the bench. By contrast, the civil rights groups want more information about Gorsuch's year-long tenure at the Justice Department as principal deputy to the associate attorney general. They note that he had responsibility for supervising the civil rights division, among other litigating units, during the intense controversy over political hiring and firing  in the division.
      Unrelatedly, the Campaign Legal Center, the Washington-based voting rights and campaign finance reform group, has filed a Freedom of Information Act request for documents pertaining to Gorsuch's service at Main Justice. Combined with Gorsuch's judicial record, the information will add to the partisan clash of opinions when Gorsuch takes the stand next month.