[Congressional Record Volume 163, Number 57 (Monday, April 3, 2017)]
[Extensions of Remarks]
[Pages E432-E434]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




OPPOSING NOMINATION OF JUDGE NEIL M. GORSUCH TO BE ASSOCIATE JUSTICE OF 
                           THE SUPREME COURT

                                  _____
                                 

                        HON. SHEILA JACKSON LEE

                                of texas

                    in the house of representatives

                         Monday, April 3, 2017

  Ms. JACKSON LEE. 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.

[[Page E433]]

  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.

[[Page E434]]

       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.''

                          ____________________