Rep. Jackson Lee Opposes Nomination of Judge Gorsuch

WASHINGTON, April 5 -- Rep. Sheila Jackson Lee, D-Texas, issued the following speech, which was published in the Congressional Record on April 3, opposing the nomination of Judge Neil M. Gorsuch to be associate justice of the Supreme Court:

Mr. Speaker, as a senior member of the House Committee on the Judiciary, Ranking Member of the Judiciary Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, and member of the Congressional Voting Rights Caucus, I rise today to express my views regarding the nomination of Judge Neil Gorsuch to be Associate Justice of the Supreme Court.

The Supreme Court is the highest court in the land and the final arbiter of our Constitution and laws, and its rulings can impact the lives and rights of all Americans as shown in the cases of Brown v. Board of Education, Roe v. Wade; Miranda v. Arizona; Gideon v. Wainwright; New York Times v. Sullivan; Obergefell v. Hodges; and Shelby County v. Holder, to name but a few.

Judge Gorsuch is a judge with an agenda, as demonstrated by his record on the federal bench, as well as his writings, speeches, and activities throughout his career.

Judge Gorsuch's frequent dissents and concurrences show he is out of the mainstream of legal thought and unwilling to accept the constructs of binding precedent and stare decisis when they dictate results he disfavors.

Judge Gorsuch's appointment to the Court would tip the balance in a direction that would undermine many of the core rights and legal protections Americans cherish.

For the reasons I will discuss in detail, the Senate should reject his nomination and not consent to his confirmation as the next Associate Justice of the U.S. Supreme Court.

On Election Night the President-Elect pledged to the nation that he would be a president to all Americans.

That pledge will ring hollow to tens of millions of Americans in light of his nomination of Judge Neil M. Gorsuch to be an Associate Justice of the U.S. Supreme Court.

Perhaps nothing would do more to reassure the American people that the President is committed to unifying the nation than the nomination and appointment of a person to be Associate Justice who has a record of championing and protecting, rather than opposing and undermining, the precious right to vote; the constitutionally guaranteed right of privacy, criminal justice reform, and support for reform of the nation's immigration system so that it is fair and humane.

That is not to be found in the record or character of Judge Gorsuch.

It should not be forgotten that the vacancy at issue was created in February 2016 by the death of Justice Antonin Scalia and should have been filled by the confirmation of the eminently qualified Judge Merrick Garland, Chief Judge of the U.S. Court of Appeals for the D.C. Circuit.

In fact, the only reason Judge Garland is not now on the Court is because Republican Senators disregarded a century of precedent and their constitutional oaths and refused to consider the nomination because it was made by President Obama.

Judge Gorsuch's conservative ideology and professed judicial philosophy of "original intent," which more accurately should be called the doctrine of predetermined result, has been at the core of his prior legal decisions.

He is not an unbiased judge; at best, he is a younger, more charming version of Judge Robert Bork, who was rejected 58-42 by the Senate in 1987.

Unlike his predecessors, Presidents Obama, Clinton, Reagan, Eisenhower among them, the current President did not consult in advance with the bipartisan leadership of the Senate and its Judiciary Committee.

Instead, the President selected Judge Gorsuch from the list of names provided him by the right-wing legal group, the Federalists Society.

Judge Gorsuch's adherence to originalism is alarming and should raise concerns for all Americans because on a narrowly divided Court, his could be the deciding vote to dismantle many of the constitutional safeguards and protections upheld by the Court that have moved the country forward and made it better.

Judge Gorsuch has a history of ruling against people who have used the legal system to hold government officials accountable.

He has also used the bench to rule in favor of large corporations routinely and against the rights of workers.

He has been lenient on those that have used excessive force and police brutality.

His record demonstrates hostility towards equal opportunity, worker's rights, women's access to reproductive healthcare services, and protections for persons with disabilities.

For example, in TransAm Trucking, Inc. v. Administrative Review Board, the majority held that a trucking company unlawfully fired an employee in violation of federal whistleblower protections.

The employee, Alphonse Maddin, was a truck driver whose brakes broke down in the middle of a freezing January night in Illinois.

The truck heater didn't work either, and he got so cold that he couldn't feel his feet or torso, and he had trouble breathing.

Nonetheless, his boss ordered him to wait in the truck until a repairperson arrived.

After waiting for three hours, Mr. 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 load while under dispatch.

The panel majority said the firing was unlawful, but Judge Gorsuch dissented and said the employee should have followed orders even at the risk of serious injury.

In NLRB v. Community Health Services, Inc., Judge Gorsuch again dissented from a majority opinion that found in favor of employees, where a hospital was required to award back pay to 13 employees whose hours had been reduced in violation of the National Labor Relations Act.

Judge Gorsuch's frequent and recurring dissents in workers' rights cases suggest a refusal to follow binding case law when it leads to results that favor workers rather than businesses and employers.

In Strickland v. UPS, Gorsuch dissented from a ruling giving a I female UPS driver a chance to prove sex discrimination, arguing that the plaintiff had not provided evidence that she was treated less favorably than her male colleagues even though her coworkers testified and gave written testimony detailing the level of mistreatment they witnessed her receiving while employed by UPS.

Hwang v. Kansas State University involved a professor employed by Kansas State University who was diagnosed with cancer, and after treatments requested an extension for her disability due to a flu outbreak on the campus, which could potentially compromise her health.

Judge Gorsuch ruled that "showing up" for work is an essential job function and that the Rehabilitation Act should not be used as a safety net for employees who cannot work.

In Planned Parenthood Association of Utah v. Herbert, Judge Gorsuch dissented against the court's majority decision to decline a full court review of the case, in which, Governor Herbert of Utah stripped federal funding away from Planned Parenthood.

Neither party requested a full court review, however, Judge Gorsuch desired to deviate from court practices and norms to signal his favor for Governor Herbert's decision.

This particular case amplifies Judge Gorsuch's inability to remain impartial when deciding cases that may conflict with his personal beliefs.

Throughout his tenure as a Judge, Judge Gorsuch's record indicates his hostility toward women's rights and his willingness to overlook institutions that discriminate against women.

Women will likely be disproportionately impacted by Judge Gorsuch's appointment to the United States Supreme Court and any decisions related to health, labor, and reproductive justice.

Judge Gorsuch's record shows that he believes police officers always should be granted qualified immunity, allowing police officers and other government officials to avoid being held accountable for the excessive use of force.

His record on police immunity aligns with President Trump's belief in police impunity.

In cases where victims of excessive force did not pose an imminent threat to police safety, Judge Gorsuch has a tendency to side with police.

Judge Gorsuch's judicial record on police accountability minimizes the Fourth Amendment protections against warrantless search and seizure.

In three separate cases, Judge Gorsuch ruled in favor of police searches of vehicles without a warrant.

As an Associate Justice of the Supreme Court of the United States, Judge Gorsuch would be one of the nine individuals tasked with one of the most critical systems of American democracy.

Because of the decisions rendered by the Supreme Court of the United States, women have been granted reproductive rights, de jure segregation and discrimination against African-Americans has been abolished and their right to vote protected, workers have been granted security from exploitative labor practices; and marriage equality is the law of the land.

If confirmed to a evenly divided United States Supreme Court, it is unlikely that Judge Gorsuch would have a balanced, unbiased view of important issues.

Judge Gorsuch's extreme judicial philosophy of original intent would likely lead him to cast decisive, out-of-the mainstream votes that reverse significant gains in the areas of police accountability, civil rights and liberties, women's reproductive rights, and workers' rights. Judge Gorsuch's record in each of these areas should raise concerns for all Americans.

Opposing Judge Gorsuch is not a difficult decision; for members of the communities represented by CBC members, it is a matter of survival, of life and death.

An Associate Justice would be expected to be an independent jurist capable of rendering judicial decisions that prevent executive overreach.

No senator should vote to confirm the nomination of Judge Neil Gorsuch as Associate Justice if he or she has the slightest doubt that he possesses the character, qualities, integrity, and commitment to justice and equality needed for this position.

[From the National Law Journal, Mar. 22, 2017]

Lawyers in Gorsuch `Frozen Trucker' Case Surprised at Attention

(By Marcia Coyle)

The case of the frozen trucker sounds like a Conan Doyle mystery but it has become a focal point in Judge Neil Gorsuch's confirmation hearings, to the surprise of the lawyers who faced off before the judge--and to the frustration of one of them.

"Would I have anticipated this last year? Of course not," said Robert Fetter of Detroit's Miller Cohen, who represented the truck driver in a suit over the lawfulness of his termination. "It's just a strange set of circumstances that gets this case on the national radar."

Attorney Brad Thoenen of Kansas City, Missouri's Seigfreid Bingham, who represented the trucking company in the case, said: "From a professional perspective, I'm very intrigued how this little case that I got to work on now comes up in something as important as this." He added: "It's kind of cool."

The case is Transam Trucking v. Administrative Review Board, which the U.S. Court of Appeals for the Tenth Circuit--Gorsuch's home for the past decade--ruled on last year.

The 2-1 panel, with Gorsuch in dissent, ruled for truck driver Alphonse Maddin.

Gorsuch's dissent has loomed large in U.S. Senate Democrats' portrayal of the nominee as a judge who more often than not sides with the companies against the "little guy." Democrats have challenged Gorsuch often about the dissent during his Senate Judiciary Committee hearings, which continued Wednesday.

The backstory, in brief: [Alphonse] Maddin, driving through Illinois, had waited more than three hours in freezing temperatures in an unheated truck for assistance. The brakes had frozen on his trailer. He was fired after disconnecting the trailer and driving off because his feet and legs were going numb. His employer had instructed him to stay with the truck until a repair team arrived or to drive the truck while pulling the trailer with the failed brakes.

In his dissent, Gorsuch said the law only forbids firing an employee who refuses to operate a vehicle out of safety concerns. "The trucker in this case wasn't fired for refusing to operate his vehicle," Gorsuch wrote. "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."

Reluctant participant

Maddin and two others who were negatively affected by Gorsuch opinions recently appeared at a press conference sponsored by several Senate Democrats. A Detroit resident, Maddin has been unable to find work as a driver since his firing seven years ago and is "somewhat homeless," said Fetter, who has stayed in touch.

"He's a reluctant participant in these things," Fetter said in an interview this week. "He is just a regular guy and kind of shocked his case is getting this attention." The case began more than seven years ago when Maddin, on his own, filed a complaint with the Occupational Safety and Health Administration. The agency undertook an investigation. Maddin had been unable to find a lawyer to represent him until he reached Fetter. That happened around the time the OSHA ruled against him.

"I saw there was an issue and wanted to represent him," Fetter recalled. "I had a lot of empathy for what he went through."

Through administrative proceedings, Maddin ultimately won. The company then turned to the U.S. Court of Appeals for the Tenth Circuit.

"I'm a Detroit lawyer," Fetter said. "I practice in circuit courts pretty regularly, either the Sixth or D.C. circuits. We have maybe one case in the history of the firm that gets to the Tenth Circuit; it has pretty egregious facts and we happen to get to Judge Gorsuch on the panel. He writes a dissent with this textualist argument that keys it up for interest in a Supreme Court confirmation hearing. That set of circumstances is pretty astounding."

At oral argument in the case, Fetter said, Gorsuch was "incredibly" hostile in tone towards him and the Labor Department attorney who shared his argument time "It was not pleasant," Fetter said of the experience.

Fetter said he has been watching some of Gorsuch's hearing and would normally pay attention to a U.S. Supreme Court confirmation hearing. "Whether I would watch as much as I did [Tuesday], probably not," he added. "I've looked at this one with particular interest. I'm watching Judge Gorsuch being grilled by [Sen. Al] Franken over my case and I'm feeling some sympathy for him, but then I remember my case, and I have no sympathy."

The Gorsuch hearing is the first that Thoenen, the lawyer for Transam, has watched.

"We were certainly interested in seeing how [the Transam case] would come up," he said. "We were aware of it when he was nominated and as the nomination process has gone on, we've been watching to see how it gets portrayed."

Much more to the story

The portrayal of the case, he said, has been a source of frustration to the firm, which has represented Transam for a number of years.

"The narrative is: Frozen trucker and frozen trucker gets fired from job," Thoenen said. "There's much, much more to the story that doesn't come out."

Thoenen continued: "As soon as he made his original complaint, OSHA came into Transam and had a couple of days investigation, talked to all of the people involved and found no violation, no retaliation by Transam. [Maddin] lost that round. That never gets mentioned in the narrative right now, only that seven judges ruled for him and Gorsuch is [the] only one to rule against him."

The facts, as found by an administrative law judge, were "vigorously disputed," including a nonworking heater and auxiliary power, Thoenen said.

Thoenen's firm, Seigfreid Bingham, is "kind of a unique little player in the market," he said. "We view ourselves as outside general counsel for a lot of clients," he said. "Primarily we represent clients in and around Kansas City."

Thoenen came into the case after the administrative law judge's opinion.

As surprising as is the trucker case's notoriety, more surprising perhaps is how long it took to end the case itself, Thoenen said.

"This event occurred in January 2009," he recalled. "We got the appellate opinion in 2016. Four years before that was the ALJ decision and another two to two-and-half years for the Administrative Review Board to affirm."

During the Gorsuch hearings, senators and the nominee talked about access to justice and the length of litigation, Thoenen said. "It is unbelievable that this case would go on for seven-and-a-half years."