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Offline Perspective

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SCOTUS
« on: March 21, 2017, 09:00:04 AM »
The ‘Frozen Truck Driver’ Case Democratic Senators Are Hanging On Neil Gorsuch

http://abovethelaw.com/2017/03/the-frozen-truck-driver-case-democratic-senators-are-hanging-on-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.
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.

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.

Offline spootieho

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Re: SCOTUS
« Reply #1 on: March 22, 2017, 10:37:53 PM »
My understanding is that they tried to say that a law says "you can't be forced to operate a vehicle if you feel it's unsafe."  They tried to apply that law to a case where someone operated a vehicle for his safety.  As absurd as his termination sounds, I don't think the particular law referenced applies.

Now the author of the article states, doing nothing was also being forced to operate the vehicle.  I agree.  Unfortunately, in this predicament, so was the action that he took.  I can see this case going either way, but if it's the worst that the left can throw at him for his past decisions then good for him.

Whatever the case, this does make Trans Am look like a POS company to work for.

The author of that article states:
Quote
But I’m not a fan of this line of attack against his confirmation.
Hmm...  maybe this article wasn't worth writing then.  ;)

On a side note, I feel that most "wrongful termination" cases are crap.  Also, why would you want to work for a company that wants to terminate you?  Obviously, this case has to do with safety and perhaps we do need such laws for safety, but apparently there wasn't one that applied.  There was a similar one that didn't apply.

Offline Perspective

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Re: SCOTUS
« Reply #2 on: March 23, 2017, 06:16:14 AM »
This article is more about the judicial philosophy that triers of fact have the ability, insight, and are duty bound, to determine what the drafters of a particular statute intended at the time the language was written - e.g. "originalists" like Scalia. They believe no other interpretive efforts are valid.
« Last Edit: March 23, 2017, 06:39:09 AM by Perspective »

Offline nosuchreality

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Re: SCOTUS
« Reply #3 on: March 23, 2017, 06:22:10 AM »
Jimho, if we are to have a justice system, we need judges that can reasonably apply the spirit of the laws and not reduce it to just a technical interpretation on wording minutiae.

Offline peppy

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Re: SCOTUS
« Reply #4 on: March 23, 2017, 09:53:41 AM »

Offline morekaos

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Re: SCOTUS
« Reply #5 on: March 23, 2017, 10:02:06 AM »

Offline Perspective

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Re: SCOTUS
« Reply #6 on: March 23, 2017, 10:13:03 AM »
This is shameful. At some point, someone in Congress will have to say enough is enough. This seems like the perfect political opportunity for Senate Democrats to highlight the Senate Republicans' treatment of the Garland nomination, while proving they're better than that.

Politics is both fascinating, and utterly frustrating.

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Offline Perspective

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Re: SCOTUS
« Reply #7 on: March 27, 2017, 09:35:07 AM »
Delay is fine, if it provides sufficient political cover, but take this opportunity to rise above the obstructive juvenile behavior. Granted, this is easy to say, harder to implement. For instance, which eight Democrat Senators should rise above? Which eight Democrats can sell this to their state's base and their state generally, without serious repercussions?

Couldn't this be a political win for the Democrats in another way too? In the sense that if this nomination goes through quickly without much fanfare, the press doesn't talk about it much, and the issues remain focused on everything else goin' on?

Senate Judiciary Democrats Will Delay The Gorsuch Vote One Week
http://abovethelaw.com/2017/03/senate-judiciary-democrats-will-delay-the-gorsuch-vote-one-week/

I think we all know that a showdown is coming. I don’t see eight votes for Republicans to break a Democratic filibuster. The question is whether there are three Republican votes to defy Mitch McConnell and uphold the filibuster rule for Supreme Court nominees.

Offline spootieho

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Re: SCOTUS
« Reply #8 on: March 27, 2017, 11:59:01 PM »
It's been a while but this is just a reminder that Democrats are at least just as bad when it comes to gaming the system.

Offline peppy

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Re: SCOTUS
« Reply #9 on: March 28, 2017, 09:54:57 AM »
It's been a while but this is just a reminder that Democrats are at least just as bad when it comes to gaming the system.

Don't hate the player, hate the game. :P The minority party is always going to be the party of obstruction. If Garland was not deemed qualified, I'm pretty sure nobody else the Rs can put forward will be either (regardless of merit at this point). Rs probably will have to go nuclear on this one. 

Offline morekaos

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Re: SCOTUS
« Reply #10 on: March 28, 2017, 10:07:34 AM »
It's stupid for them to blow their ammo on this one.  They will set the nuclear precedence on an unwinnable nomination when the next one is the nomination they will need to fight (probably Ginsburg). If the trigger is already pulled the Repubs will pull it again for her replacement in short order. You're done...end of story!!

« Last Edit: March 28, 2017, 10:12:52 AM by morekaos »

Offline spootieho

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Re: SCOTUS
« Reply #11 on: March 28, 2017, 01:26:29 PM »
Don't hate the player, hate the game. :P The minority party is always going to be the party of obstruction.
Oh I get that.  I've always had the stance "both sides do it."

It's just we've been bombarded over the years with people talking out of their asses.  In the past few months, we've found out that these people were just completely full of shit on about every criticism they had. 


Offline peppy

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Re: SCOTUS
« Reply #12 on: March 28, 2017, 02:09:50 PM »
Don't hate the player, hate the game. :P The minority party is always going to be the party of obstruction.
Oh I get that.  I've always had the stance "both sides do it."

It's just we've been bombarded over the years with people talking out of their asses.  In the past few months, we've found out that these people were just completely full of shit on about every criticism they had.

It's easy to oppose stuff. It is way harder being in the majority where you are expected to get stuff done. Even harder in the hyper-partisan environment we have these days.


Offline nosuchreality

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Re: SCOTUS
« Reply #13 on: March 28, 2017, 02:49:34 PM »
Don't hate the player, hate the game. :P The minority party is always going to be the party of obstruction.
Oh I get that.  I've always had the stance "both sides do it."

It's just we've been bombarded over the years with people talking out of their asses.  In the past few months, we've found out that these people were just completely full of shit on about every criticism they had.

It's easy to oppose stuff. It is way harder being in the majority where you are expected to get stuff done. Even harder in the hyper-partisan environment we have these days.



AFAICT, the Freedom Caucus wanted insurance to be like it was in 2010.  My guy tells me, eight years latter, many proponents of that would be in for a rude surprise, even if they were still covered by an employer plan.

Offline Perspective

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Re: SCOTUS
« Reply #14 on: March 28, 2017, 03:51:24 PM »
The Freedom Caucus appears to have one defector post-AHCA Failure, but the remaining members are as vocal as ever regarding their support for a limited government that controls its spending. Their mettle will be truly tested when a big tax cut bill is made public that ignores deficits and the debt.
« Last Edit: March 28, 2017, 03:58:32 PM by Perspective »

 

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