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A Driver Fled His Truck to Avoid Freezing to Death. Only One Judge Ruled Against Him: Neil Gorsuch

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Supreme Court nominee Neil Gorsuch is heading to Capitol Hill today for his third day of confirmation hearings. On Tuesday, he was questioned for over 10 hours by members of the Senate Judiciary Committee. He faced particularly intense scrutiny over his decision to rule against a truck driver whose employer fired him for deserting a trailer so he wouldn’t freeze to death. For more on this case and the rest of Gorsuch’s record, we speak with Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. We also speak with Elliot Mincberg, former chief counsel for oversight and investigations of the House Judiciary Committee.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We turn now to the confirmation hearings of Supreme Court nominee Neil Gorsuch. On Tuesday, Gorsuch faced over 10 hours of questioning by members of the Senate Judiciary Committee. Gorsuch was tapped by President Trump to fill the seat left vacant by Antonin Scalia’s death over a year ago. President Obama nominated Merrick Garland to replace Scalia nearly a year ago, but Republicans refused to even hold hearings, fearing Garland would tip the ideological balance of the court to the left.

One of the most riveting moments in the Gorsuch hearing occurred when Minnesota Senator Al Franken questioned Gorsuch about his ruling in a case involving a truck driver who got fired after he disobeyed a supervisor and abandoned his trailer that he was driving, because he was on the verge of freezing to death. The truck driver couldn’t drive off with the trailer, because the trailer’s brakes had frozen. In the case, Judge Gorsuch cast the sole dissent ruling in favor of the trucking company against the trucker. In a moment, we’ll hear Franken questioning Judge Gorsuch about the case, but first let’s turn to the truck driver himself, Alphonse Maddin, who spoke in Washington, D.C., a few days ago at an event organized by Senate Democrats.

ALPHONSE MADDIN: In January of 2009, I was working as a commercial truck driver for TransAm Trucking Incorporated of Olathe, Kansas. I was hauling a load of meat through the state of Illinois. After stopping to resolve a discrepancy in the location to refuel, the brakes on the trailer froze. I contacted my employer, and they arranged for a repair unit to come to my location. I expected that help would arrive within an hour.

I awoke three hours later to discover that I could not feel my feet, my skin was burning and cracking, my speech was slurred, and I was having trouble breathing. The temperature that night was roughly 27 degrees Fahrenheit below zero. The heater in the cabin was not producing heat, and the temperature gauge in the truck was reading minus-7 degrees below zero. After informing my employer of my physical condition, they responded by telling me to simply hang in there.

As I sat there physically suffering in the cold, I started having thoughts that I was going to die. My physical condition was fading rapidly. I decided to try to detach the trailer from the truck and drive to safety. When I stepped out of the truck, I was concerned that I may fall, because I was on the verge of passing out. I feared that if I fell, I would not have the strength to stand up, and would die. I walked to the back of the trailer to place a lock on the cargo doors. The distance that I walked to the back of the trailer seemed like an eternity, as my feet absolutely had no feeling at all.

I eventually was able to detach the tractor from the trailer. Before I left, I called my employer to notify them that I had decided to head for shelter. And they ordered me to either drag the trailer or stay put. In my opinion, clearly, their cargo was more important than my life. My employer fired me for disobeying their orders. And I’d like to make it clear that although I detached the tractor from the trailer, I returned, and I completed my job. And I was still fired.

OK, I disputed my termination from TransAm Trucking and ultimately won. This was a seven-year battle. Seven different judges heard my case. One of those judges found against me. That judge was Neil Gorsuch.

AMY GOODMAN: That was Alphonse Maddin, the trucker, the driver, in the case involving Supreme Court nominee Neil Gorsuch. At Tuesday’s hearing, Senator Al Franken questioned Gorsuch about his dissent in the case.

SEN. AL FRANKEN: There were two safety issues here: one, the possibility of freezing to death, or driving with that rig in a very, very—a very dangerous way. Which would you have chosen? Which would you have done, Judge?

JUDGE NEIL GORSUCH: Oh, Senator, I don’t know what I would have done if I were in his shoes, and I don’t blame him at all, for a moment, for doing what he did do.

SEN. AL FRANKEN: But—but—but—

JUDGE NEIL GORSUCH: I empathize with him entirely.

SEN. AL FRANKEN: OK, just you’ve—we’ve been talking about this case. Don’t—you don’t—you haven’t decided what you would have done? You haven’t thought about, for a second, what you would have done in his case?

JUDGE NEIL GORSUCH: Oh, Senator, I thought a lot about this case, because I—

SEN. AL FRANKEN: And what would you have done?

JUDGE NEIL GORSUCH: I totally empathize and understand—

SEN. AL FRANKEN: I’m asking you a question. Please answer questions.

JUDGE NEIL GORSUCH: Senator, I don’t know. I wasn’t in the man’s shoes. But I understand why he did—

SEN. AL FRANKEN: You don’t know what you would have done.


SEN. AL FRANKEN: OK, I’ll tell you what I would have done. I would have done exactly what he did.

JUDGE NEIL GORSUCH: Yeah, I understand that.

SEN. AL FRANKEN: I think everybody here would have done exactly what he did. … It is absurd to say this company is in its rights to fire him because he made the choice of possibly dying from freezing to death or causing other people to die possibly by driving an unsafe vehicle. That’s absurd. Now, I had a career in identifying absurdity, and I know it when I see it. And it makes me—you know, it makes me question your judgment.

AMY GOODMAN: That’s Senator Franken questioning Judge Gorsuch. We’re joined now by two guests. Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, she’ll be testifying before the Senate Judiciary Committee on Thursday. Elliot Mincberg is a senior fellow at People for the American Way, former chief counsel for oversight and investigations of the House Judiciary Committee.

Kristen, let’s begin with you. Can you talk about the significance of this case, Judge Gorsuch, the sole dissenter, siding with the company that this man should have remained in subfreezing weather in this broken-down truck, even if it meant he would die?

KRISTEN CLARKE: Well, you know, it’s not just this one case. At the Lawyers’ Committee for Civil Rights Under Law, what we historically do is we review the full record of nominees that are put forth for the Supreme Court. And we did that with Judge Gorsuch. We looked at many of the cases that he authored or joined the opinion in during his tenure on the 10th Circuit.

And what we found was a pattern that suggests that he is not someone who believes that victims should be using the courtroom as a place to vindicate their civil rights. He has a very narrow view of civil rights. This was a pattern that emerged for us as we evaluated the many cases that were issued or authored by Judge Gorsuch. We found this pattern especially pronounced in the criminal justice context—when we looked at cases involving police officers, for example. Judge Gorsuch is someone who is a—has a very law-and-order outlook. He’s somebody who is very pro-law enforcement. There’s one case that stands out from his record, in which an officer sought qualified immunity after being sued in a wrongful death matter after shooting a victim in the head at close range with a Taser. The victim died. And there, Judge Gorsuch determined that the officer was entitled to qualified immunity. And there were a number of cases like this.

In a separate criminal justice matter—you know, Judge Gorsuch, throughout these hearings, has gone to great lengths to say that he looks at people individually. But in some of the criminal justice cases, he talked about cops as a general group who, you know, we shouldn’t question or second-guess their judgments. So, he’s somebody who is bringing to bear a very pro-law enforcement perspective. And I think that’s important, because victims in the trucking case, victims in criminal justice cases, often are, you know, going to the courts as a forum of last resort, and Mr. Gorsuch is not somebody who views the courts as a place for victims of discrimination to really vindicate their rights. And that’s deeply problematic.

AMY GOODMAN: Elliot Mincberg of People for the American Way, this particular case is stunning, and Senator Franken spent a lot of time on this, asking Judge Gorsuch would he want to be on the road of a trucker who was experiencing hypothermia, who was not able to drive this road correctly. Not only would he be endangering himself, the trucker, but other people on the road. Can you talk more about this case?

ELLIOT MINCBERG: Well, you’re exactly right. And it’s interesting. In the excerpt you played, the judge continues to try to claim that he has empathy for this truck driver. But when the pedal hit the metal, so to speak, he did precisely the opposite. He did what he does in so many cases, but sided with the corporation, which claimed under the law that it had the ability to insist that that truck driver either drive the truck with the trailer attached or stay right where he is. As Senator Franken pointed out, the result of either one of those likely would have been his death. And the majority in that case and all the other judges that looked at it saw very clearly that the Labor Department was correct and that there was no good justification for what the employer had done. Gorsuch disagreed, as he so often does in cases involving corporations, where he very consistently tends to favor the corporation over the individual employee, consumer, whatever the case may be. In fact, we found that out of 11 dissents that he wrote relating corporations, 10 of them—all but one—were in favor of the corporation. The only exception was a case where a local community wanted to regulate an adult bookstore.

AMY GOODMAN: And what happened in that case?

ELLIOT MINCBERG: In that case, he went along with the local community and went against the corporation. That was the only dissent in which he did that. And even in those cases that he tried to talk about, under usually Republican questioning, where he favored employees—which he did occasionally—almost always they tended to be against a municipal corporation. When it’s a corporation, a private corporation, involved, the kind of corporation that he represented in private practice, he very, very consistently votes for the corporation, not the little guy. And that’s not what we want on the Supreme Court.

AMY GOODMAN: Elliot Mincberg and Kristen Clarke, stay with us. We’re just going to go to break and come back to look more at Judge Gorsuch’s record. Stay with us.

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