The 'Frozen Truck Driver' Case Democratic Senators Are Hanging On Neil Gorsuch

Hanging the "bad outcome" on a judicial nominee is never the right way to go.

Justice Neil Gorsuch?

Justice Neil Gorsuch?

It’s opening day for the Neil Gorsuch confirmation hearings. Today is just opening statements from the Senate Judiciary Committee, and a statement from the nominee. Which means all we’re getting is a bunch of Senators explaining how they’ll vote before the nominee says a damn thing.

Wonderful system we’ve got here.

The “point” of today, to the extent that it has one, is just to outline the various lines of attack/defense for tomorrow, and one case has come up multiple times from Democratic Senators. If you have just been casually paying attention to Twitter, you might have heard that Neil Gorsuch froze a truck driver to death… or something.

Let’s break that down (pun intended, as you’ll see). The Tenth Circuit decided a case called TransAm Trucking v. Dept. of Labor. Trucker Alphonse Maddin broke down on a freezing Illinois road, at night, out of gas. He called TransAm, they told him to wait with his load. He found that the brakes had frozen. The cab of the truck was unheated. He called TransAm again, who told him to wait again. Hours passed. He called TransAm again, explaining that he had symptoms that sound a lot like the early onset of hypothermia. TransAm told him, according to court records, “to either drag the trailer with its frozen brakes or stay where he was.”

After three hours in the cold, Maddin unhitched the trailer and went in search of gas. Eventually, the trailer was secured, and Maddin was fired for violating orders.

Maddin sued, and an arbitrator ruled that his termination was illegal under laws that protect employees from being compelled to operate vehicles in unsafe conditions. Appeals ensued, and the Tenth Circuit sided with Maddin, 2 – 1.

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The one dissenter was Neil Gorsurch, and that is why TransAm Trucking was on the tips of Democratic tongues this morning. Gorsuch wrote:

It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one. The Department of Labor says that TransAm violated federal law, in particular 49 U.S.C. § 31105(a)(1)(B). But that statute only forbids employers from firing employees who “refuse[] to operate a vehicle” out of safety concerns. And, of course, nothing like that happened here. The trucker in this case wasn’t fired for refusing to operate his vehicle. Indeed, his employer gave him the very option the statute says it must: once he voiced safety concerns, TransAm expressly — and by everyone’s admission — permitted him to sit and remain where he was and wait for help. 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. And there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid. Maybe the Department would like such a law, maybe someday Congress will adorn our federal statute books with such a law. But it isn’t there yet. And it isn’t our job to write one — or to allow the Department to write one in Congress’s place.

When describing Gorsuch’s dissent this morning, Dick Durbin (D-IL) said: “According to [Maddin’s] recollection, it was 14 degrees below. So cold, but not as cold as your dissent, Judge Gorsuch.”

Gorsuch took heat (zing) on that dissent from Senators Durbin, Feinstein, Blumenthal, and Mazie Hirono (D-HI), who spent half her time lighting up his argument. Gorsuch didn’t get a chance to defend himself today, but I’m sure he’s prepared to answer them tomorrow.

But, for the uninitiated, this is just kind of how conservative judges roll. His argument wasn’t that Maddin should have stayed there and froze to death, his argument is that the law provides no remedy for a trucker who needs to drive away to save his life. That’s a pretty standard conservative-jurist answer to, you know, problems in society.

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Victim: I have a problem.
Conservative: Does Congress say I should care?
Victim: Kinda!
Conservative: Not good enough.

Obviously, I disagree with Gorsuch’s reasoning here. I think being forced to sit inside a truck is “operating it,” within the meaning of the statute. But I’m not a fan of this line of attack against his confirmation. The problem with textualists is not that their outcomes are bad (though, usually, they’re terrible), it’s that their reasoning limits the law to the dull reading of the text. Congress, to my mind, shouldn’t have to write a whole new law to specify “drivers cannot be ordered to get hypothermia.” The law is perfectly flexible enough to incorporate a “no-hypothermia” rule without additional acts of Congress.

But that’s my problem with CONSERVATIVES, not with Gorsuch specifically. It’s my problem with their thought process, not the outcome in a specific Gorsuch case where, in point of fact, he lost anyway. No truckers were frozen to death, under Neil Gorsuch’s watch.

There are better lines of attack against Gorsuch. Lines like: “Are you Merrick Garland? No? Then why the f**k are you here?” Or “Do you think women are people? Because your decisions don’t seem to support their fundamental humanity.” Or how about “Is there anything the guy who appointed you can do that will make you choose law over party? Feel free to answer in list form.”

Hanging the “bad outcome” on a judicial nominee is never the right way to go. Gorsuch thinks like a conservative. If that’s all the Dems have on him, they best move on.

UPDATE (3/21/2017, 10:55 a.m.): Gorsuch Hearings Day 1: If This Is All The Dems Got, They Best Go Home.

This Is How Neil Gorsuch Thinks [Daily Intelligencer]
TransAm Trucking v. Department of Labor [Tenth Circuit]


Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.