The Nomination of Judge Neil Gorsuch
In order to properly discharge the constitutional duty to provide “advice and consent” on judicial nominees, I believe it is my duty as a U.S. Senator to evaluate the nominee based on several key criteria: character, temperament, professional and personal experience, judicial philosophy and, of course, prior judicial rulings. When considering nominees to the Supreme Court of the United States, the most powerful court in the world, my obligation to be thorough in this process could not be more serious. Accordingly, with regard to President Trump’s nominee to the Supreme Court, Judge Neil Gorsuch, I have spent hours studying his decisions as a member of the U.S. Court of Appeals for the 10th Circuit. I have consulted a variety of legal scholars and practitioners to understand the nuances and implications of his approach to the law. I met him personally to discuss his work and his nomination. And I watched closely his testimony before the Judiciary Committee this week.
Judge Gorsuch’s experience as a lawyer and a judge is substantial, and I have found nothing in the record that would disqualify him based on his character, temperament or experience. I do, however, have serious concerns about Judge Gorsuch’s rigid and restrictive judicial philosophy, manifest in a number of opinions he has written on the 10th Circuit. It is a judicial philosophy that employs the narrowest possible reading of federal law and exercises extreme skepticism, even hostility, toward executive branch agencies.
Last year, he wrote an opinion which referred to administrative agencies collectively as a “behemoth” unnecessary to the proper functioning of society and our system of government. He argued judges should restrict the ability of these agencies to do their work on behalf of the American people. Indeed, even Justice Scalia, a conservative ideological stalwart whom Judge Gorsuch has praised effusively, would not even go this far, affirming years ago in a speech at Duke Law School the consensus view that deference to administrative agencies — the ones staffed with career experts who ensure we have clean air, fair working standards, and safe food and medicine — is the only appropriate judicial approach. “It more accurately reflects the reality of government,” Scalia said, “and thus more adequately serves its needs.” Judge Gorsuch disagrees, and while his approach would perhaps be interesting to debate as a legal theory, it is striking to see it outlined in an opinion from a federal judge whose words have serious consequences for people in the real world.
Judge Gorsuch opinions often reflect a commitment to satisfy his judicial philosophy more than to grapple with the complex circumstances faced by ordinary Americans. Disproportionately, powerful interests are the beneficiaries and ordinary Americans the losers of this approach. It is little wonder that corporate special interests on the right placed Judge Gorsuch’s name on a list of litmus-tested judges from which they demanded the President choose his nominee. The same groups are currently funding a $10 million dark money campaign to get Judge Gorsuch confirmed.
This is cause for particular concern at a time when the Supreme Court, under Chief Justice Roberts, has become an ever more reliable ally to big corporations. A major study published in the Minnesota Law Review in 2013 found that the four conservative justices currently sitting on the court, Justices Alito, Roberts, Thomas and Kennedy, are among the six most business-friendly Supreme Court justices since 1946. A review by the Constitutional Accountability Center shows the consequences of the court’s corporate tilt, finding that the Chamber of Commerce has had a success rate of 69 percent in cases before the Roberts Court, a significant increase over previous courts. These are cases of serious importance to everyday Americans — cases involving rules for consumer contracts, challenges to regulations ensuring fair pay and labor standards, attempts by consumers to hold companies accountable for product safety and much more.
Judge Gorsuch’s record indicates that he would only exacerbate this problem and further stack the deck against ordinary workers and families. Many have expressed concerns about his opinion in Hobby Lobby v. Sebelius, in which he endorsed the idea that owners of for-profit businesses can assert corporate religious liberty rights, opening the door to widespread discrimination against LGBT Americans and others. But a variety of other cases are equally illustrative of Judge Gorsuch’s troubling approach.
One case, Compass Environmental, Inc. v. OSHRC, involved the tragic death of a trench hand who was electrocuted while working as part of an excavation crew. The court reviewed a ruling by the Department of Labor (DOL) punishing the mining company for failing to provide proper safety training to the worker. Judge Gorsuch mocked the DOL’s ruling as nothing more than a “Delphic declaration” devoid of necessary proof, and concluded that the agency was wrong to penalize the company following the worker’s death. Fortunately, a majority of the court disagreed and affirmed DOL’s ruling.
Another case, TransAm Trucking, Inc. v. Administrative Review Board, involved a truck driver who was stranded on the side of the road at night in subzero temperatures with the brakes on his trailer frozen and the heater in his cab broken. He called dispatch for help multiple times, but after hours of waiting in the freezing cold, he was having trouble breathing and his torso and feet were numb. Worried about his safety, he unhitched his trailer and drove the truck away. The company fired him for abandoning his load. Two different authorities within the DOL ruled the firing was illegal and the trucker was protected under federal law. Judge Gorsuch disagreed, parsing a federal statute to argue the driver was not protected in his decision to drive away, despite the risk of freezing to death if he stayed put. Again, fortunately, the majority of the court disagreed, describing Judge Gorsuch’s labored interpretation of the statute as “curious” and ruling in favor of the driver.
Judge Gorsuch has a particularly troubling record when it comes to enforcing legal protections for individuals, particularly students, with disabilities. This case is worth dwelling on since, just this week, the Supreme Court issued a unanimous 8–0 ruling repudiating a previous opinion Judge Gorsuch wrote concerning the rights of a disabled student. In that 10th Circuit case, Thompson R2-J School District v. Luke P., Judge Gorsuch saw fit to overturn three previous rulings in favor of the family of an autistic child. These previous rulings found that the family was entitled to reimbursement for tuition at a residential program tailored for autistic children, since their son Luke was having trouble generalizing the skills he learned at school to his outside life. Judge Gorsuch reversed these rulings, going beyond precedent to articulate the narrowest possible interpretation of the federal law that protects students with disabilities, the Individuals with Disabilities in Education Act (IDEA).
Judge Gorsuch ruled that as long as Luke’s progress was “merely more than de minimis” — essentially anything beyond no progress at all — then the school had satisfied its duty under IDEA to provide a so-called “free and appropriate education”. The Supreme Court’s decision this week highlights the callous absurdity of this approach, even quoting Judge Gorsuch’s opinion to explain that, “a student offered an educational program providing “merely more than de minimis” progress from year to year can hardly be said to have been offered an education at all … The IDEA demands more.” I agree.
Judge Gorsuch’s opinions in these cases and many others show how his judicial philosophy produces rulings disconnected from the lived experience of those they impact. It’s in that disconnect that ordinary people get hurt — they lose their livelihood, find their rights curtailed or see the courthouse doors closed in their face.
It is a little-known fact that the imposing Supreme Court building on Capitol Hill did not always house the highest court in the land. Indeed, the justices only met in Washington, D.C. starting in 1800, after convening in New York and Philadelphia in years preceding, and only received their own dedicated building in 1935. No matter where it met, however, the Supreme Court has embodied an essential principle of democratic fairness now engraved above its doors: equal justice under law.
The independence that empowers the judiciary to live up to this principle has been under sustained attack for duration of the current vacancy on the Supreme Court, a vacancy which has been held open for over a year now by Senate Republicans for purely political reasons. So it is with a heightened sense of urgency to protect the institutional integrity of the court that I undertook my review of Judge Gorsuch’s nomination.
After considering his nomination seriously and without pre-judgement, and mindful of the awesome responsibility of passing judgement on nominees to the highest court in the nation, I do not believe Judge Gorsuch’s judicial approach will ensure fairness for workers and families in Pennsylvania. We cannot demand perfection from Supreme Court justices. But we can demand a constant commitment to fairness, to protecting all Americans regardless of power or wealth, to that guiding creed: equal justice under law. I have concluded that Judge Gorsuch is not the right choice to fulfill this commitment. I will not support his nomination.