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Supreme Court nominee Neil Gorsuch’s shameful history of putting the powerful before the public

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- Commentary

The following is reprinted with the permission of People For The American Way.

When Donald Trump was running for president, he outsourced his future selection of potential Supreme Court nominees to two right wing organizations, the Federalist Society and the Heritage Foundation. They provided him a list of 21 people who were acceptable to them, Trump promised to select a nominee from the list they gave him, and they and their right wing colleagues agreed to support him. Neil Gorsuch was nominated as the product of this political arrangement.

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So it is no surprise that Judge Gorsuch has a history of regularly finding ways to put corporations and the powerful first. In that way, he is much like his idol and role model Antonin Scalia and the other far right conservatives on the Supreme Court. And while this unbalanced approach to cases might make for interesting reading, the courtroom is not an academic paper. Each case involves real people with real problems. While a judicial decision might be just another day at work for some judges, it is often one of the most important and impactful days in the lives of the people involved. Below are some of the cases Judge Gorsuch has been involved with and the people who have been affected by them—people who have been victimized outside the courtroom and, to the extent Gorsuch’s view prevails, are victimized again.

Excessive Force: Immunity for Police Officer Who Kills Young Man Over Marijuana Plants

Wendy and Jack Wilson learned about Gorsuch’s approach to the law the hard way when they sought to hold police officer John Harris accountable for needlessly killing their son Ryan. Their son had been seen standing near an area known for growing marijuana, and he admitted the plants were his. Then he ran. Officer Harris chased him until Ryan reached a fence, where he stopped. Officer Harris saw Ryan start to reach into his pocket and warned him not to, in case it held a weapon. As Ryan turned to run again, Officer Harris shot him in the back of the head or neck with a Taser, killing him.

But in Wilson v. City of Lafayette (2013), Judge Gorsuch concluded that Harris hadn’t used unconstitutionally excessive force, so the parents’ case shouldn’t even go to trial. Another judge observed in her dissent that Gorsuch’s opinion

…fails to give sufficient weight to the fact that the Taser used by Officer Harris on August 4, 2006, had a targeting function, that Officer Harris fired at Ryan Wilson from only ten to fifteen feet away, and that the training manual specifically warned officers against aiming at the head or throat unless necessary.

Given all this, the Wilsons certainly had a legal argument of excessive force they should have been able to present at a trial. But Gorsuch shut that possibility down. After losing their son, they lost the opportunity to hold anyone accountable for his completely unnecessary killing.

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So much for “And Justice For All.”

Worker Dies Due to Inadequate Training, but Gorsuch Tries to Rule for the Company

Chris Carder also died needlessly, but in his case it was from a workplace accident in which he was electrocuted. Carder worked as a trench hand at a mine site, which involved using rubber and metal hose with a metal nozzle to dispense grease. Since there was a live power line crossing over the construction site, the safety training everyone received warned trench hands and others to keep at least twenty feet from the power line. However, Carder started on the job a week after everyone else and, in a decision that had tragic consequences, this safety measure was not included in Carder’s individual training. An accident ensued when the nozzle was too close to the power line, and Carder was fatally electrocuted.

Looking into the accident, the Department of Labor’s Occupational Safety and Health Review Commission (OSHRC) concluded that Carder could have avoided electrocution had he been adequately trained by his employer (Compass Environmental) about the highly dangerous situation he faced—training that the other on-site employees had received. OSHRC issued a serious citation against Compass for inadequate training, and it imposed a financial penalty against the company. This was upheld by a Tenth Circuit panel, but with Judge Gorsuch in dissent.

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While the majority in Compass Environmental v. OSHRC (2011) criticized Gorsuch’s case analysis, perhaps most striking was Gorsuch’s decision to open his dissent with an ideological criticism of federal agencies in general:

Administrative agencies enjoy remarkable powers in our legal order. Their interpretations of ambiguous statutes control even when most everyone thinks Congress really meant something else. Their regulations bind as long as they can make the modest boast that they haven’t behaved arbitrarily or capriciously. Their factual findings rule the day unless someone can show they have not just erred but clearly erred.

Gorsuch wrote that this was such a case, where the agency had erred in finding that Compass had violated the law. But the superfluous ideological introduction cast a shadow on his entire approach to the case and whether he analyzed it as a disinterested judge or as an anti-government conservative seeking to use his position on the federal bench to make a political point. Either way, if it had been up to Gorsuch, the company responsible for Carder’s death would not have been held accountable.

Die or Be Fired: The Case of the Frozen Trucker

While Chris Carder died on the job, Alphonse Maddin was fired for not dying on the job. He was a truck driver hauling cargo in subzero weather, and the brakes on his trailer froze. He stopped, called the company to report the problem, then waited for a repair person. Unfortunately, the heater in the cab of the truck wasn’t working, so after a couple of hours, his body became numb, his speech was slurred, and he couldn’t feel his feet at all. He called the company two more times and reported his increasingly perilous state; he was even having trouble breathing.

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Maddin unhitched the trailer from the truck. With the repair person still not there, he called the company to let them know he was leaving to get help, but he was told not to leave the trailer behind. He was given two choices: drag the trailer despite its frozen breaks (either impossible or wildly dangerous), or keep waiting for the repair person in the cold and put his own life at risk.

Rather than die in the cold, Maddin drove off in the truck for help, leaving the trailer behind and returning with assistance in about 15 minutes. A week later, the company fired him for abandoning his cargo. The Labor Department found that the company had violated whistleblower protection regulations, since Maddin had reported a problem, not obeyed an order relating to that problem that could have killed him, and was fired for it.

Not surprisingly, in TransAm Trucking v. Administrative Review Board (2016), a panel of Tenth Circuit judges upheld the Labor Department’s actions. But Judge Gorsuch dissented. The Surface Transportation Assistance Act protects a worker from refusing to operate an unsafe vehicle, but Gorsuch reasoned that the driver wasn’t “refusing to operate” anything at all; instead, he was choosing to operate the vehicle in a way that he’d been instructed not to. And that, wrote Gorsuch, isn’t covered by the law.

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So according to Gorsuch, a law passed to protect workers from being forced to drive unsafe vehicles doesn’t cover workers who drive away to avoid the particularly unsafe situation of death. The law empowers companies to make workers choose between their jobs and their lives, according to Gorsuch. Fortunately, Maddin survived his ordeal, and Gorsuch’s analysis did not carry the day.

Defer to the Governor, Facts Notwithstanding: Gorsuch Turns a Blind Eye to an Unlawful Effort to Defund Planned Parenthood

Gorsuch also failed to carry the day when he sought to uphold Utah anti-choice Gov. Gary Herbert’s decision to block state-administered federal funds from going to the Planned Parenthood Association of Utah (PPAU). Such a ban would do great harm not only to PPAU, but it would jeopardize the health of all the women across the state who rely on it for access to critically important healthcare. The ban was announced right after misleading videos were released falsely portraying Planned Parenthood staffers around the country as unlawfully negotiating the sale of fetal body parts. The governor stated at a press conference:

We now have video where they’re selling fetus body parts for money and it’s an outrage and the people of Utah are outraged. I’m outraged. So for coloring outside the lines, [PPAU] forfeits some of their benefits.

Gov. Herbert claimed that he imposed the ban in response to the video and associated accusations, and not to punish the organization for advocating and providing abortion-related services. But in responding to PPAU’s motion for a preliminary injunction, the governor admitted that:

  • the events in the videos involved other Planned Parenthood affiliates in other states, but not PPAU;
  • there was not even an accusation that PPAU had strayed beyond the law, because the organization didn’t participate in any program that provided fetal tissue for research;
  • none of the federal funds that go through the state’s health department to PPAU are used to provide abortions; and
  • the accusations made by the creators of the videos about Planned Parenthood and its affiliates were false.

This made it clear that Gov. Herbert didn’t impose the ban based on an honest but inaccurate belief that PPAU had done something wrong. Far more likely was that he was punishing PPAU for its constitutionally-protected advocacy and services concerning abortion. In Planned Parenthood Ass’n of Utah v. Herbert (2016), a circuit court panel directed the district court to issue a preliminary injunction against enforcing the funding ban.

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But Judge Gorsuch, writing in dissent from the court’s decision not to reconsider the panel decision en banc, would have taken the governor at his word that he wasn’t seeking to punish PPAU. Among other things, Gorsuch accused the majority of not showing “the sort of comity this court normally seeks to show the States and their elected representatives.”

One of his fellow judges in the majority criticized Gorsuch’s “mischaracterization of the record and the evidence contained in it.” He also noted that Gorsuch “mischaracterizes this litigation and the panel opinion at several turns.”

The number of women in Utah and across the nation whose lives have been improved and even saved by the services offered by Planned Parenthood are legion. Judge Gorsuch would have risked the lives of Utah women, primarily those whose main access to healthcare is through PPAU. It would be hard to estimate how many women would have become ill or died had Judge Gorsuch been in the majority.
No Understanding of Another’s Perspective: The DMV and the Rehabilitation Act

Julianna Barber and her mother Marcia Barber learned just how out of touch Judge Gorsuch could be … and the pain he would impose on people with disabilities and their families. Fifteen year-old Julianna wanted to practice her driving. Colorado law restricted her to driving with a parent or guardian with a driver’s license. Since her mother Marcia was blind and therefore didn’t have a license, she asked the DMV for a reasonable accommodation: let Julianna drive with her grandfather. After consulting with the state attorney general, the DMV refused, but suggested that Marcia could give Julianna’s grandfather some form of guardianship. She refused to even discuss signing away her parental rights, and the family sued under the Rehabilitation Act.

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The Barbers lost in the Tenth Circuit, with a panel consisting of judges nominated by Ronald Reagan, George H. W. Bush, and George W. Bush (Gorsuch). The majority acknowledged that the state had discriminated against Marcia Barber, but ruled against her because she refused to even negotiate with the DMV over a reasonable accommodation.

But Judge Gorsuch wrote a concurrence going even further: Citing Colorado Rev. Stat. Sec. 15-14-102(4), Gorsuch pointed out that the guardian for purposes of driving does not have to be someone with full guardianship authority. He also cited Colorado Rev. Stat. Sec. 15-14-105’s provision that a parent can delegate “any power,” however small, “regarding care, custody, or property” of a child to someone else. Therefore, all Marcia Barber had to do was find a sheet of paper and write that Julianna’s grandfather had the authority to supervise her driving. She wouldn’t need to file the paper at a court or go through any other formal process. According to Gorsuch, this option is available to anyone and does not discriminate against anyone based on disability, so the DMV wasn’t even required to try to make a reasonable accommodation for the family.

At no point in the opinion is there any suggestion that Marcia Barber understood that the DMV was talking about anything but surrendering some of her parental rights, so it is no surprise that she wouldn’t even consider discussing it further. No reasonable judge can expect a regular person to be sufficiently familiar with the details of Colorado statutes to know everything about guardianship that he cites. How would she know this?

Gorsuch’s inability to comprehend the worldview of another person is perfectly captured in a footnote to his concurrence. It’s worth quoting in full:

Plaintiffs argue that, in a February 23, 2005 letter, the State misrepresented Colorado law by asking Ms. Barber to sign a document giving full, not limited, guardianship authority to another person. The letter, however, simply stated that, for the “youngest of drivers just learning to drive,” State law required “that they be under the direct and immediate supervision of someone with full parental authority.” By definition, a limited guardian has full parental authority, albeit for prescribed purposes, sometimes even very modest purposes (such as the supervision of a minor while driving). The State thus did not misrepresent to plaintiffs the availability or nature of its limited guardianship statutes.

Perhaps 95-99% of the nation’s population, like Marcia Barber, would not know that “someone with full parental authority” could include someone whose only authority is permission to supervise her daughter’s driving. A good judge recognizes that different people can reasonably interpret the same thing differently, based on their different educations, upbringings, and life experiences.

Sex Discrimination: Never Mind the Evidence

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Many of the appeals before the Tenth Circuit involve plaintiffs whose cases were dismissed before trial or jury verdict because (the trial judge ruled) they had not presented enough evidence to possibly support their legal claim. That is what happened to Carole Strickland, a UPS driver who was promoted to key account executive. She presented evidence that she had been the subject of sex discrimination at the new job and quit under pressure.

Her coworkers testified that supervisors treated her differently than her male colleagues. Even though Strickland met between 93% and 104% of her sales quotas and was outperforming at least some of her coworkers on every measure, only she was required to attend individual meetings with the supervisors. Only she had to make written sales commitments, even though no one was at 100% of every sales quota. One of the men in her office had lower performance than Strickland in almost every sales measure, but he was not required to attend meetings to discuss his performance, was not denied assistance, and was not counseled for failing to reach 100% in every sales measure.

At the same time, UPS pointed out that there was one other woman in Strickland’s office, and she did not report being treated differently. In addition, there had been one man among the staff whose treatment approached that given to Strickland. The district court ruled that she didn’t have a case and dismissed it.

The Tenth Circuit panel of judges who heard her appeal disagreed. While her employer’s evidence might have undercut Strickland’s case, she had nevertheless presented enough evidence for a jury to consider her arguments, consider UPS’s arguments, and conclude that she had indeed been subject to unlawful sex discrimination. Judge Gorsuch dissented, deciding for himself that Strickland’s supervisors were not motivated by sex discrimination. Therefore, Gorsuch concluded, since no reasonable jury could agree with Strickland about the cause of her treatment, her case should be dismissed before she could make her case to a jury.

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Everyone deserves their day in court. Except for some people.

The Most Vulnerable: Children With Disabilities

The Individuals with Disabilities Education Act (IDEA) ensures that students with disabilities are provided “free appropriate public education.” Under the law, such children have “Individualized Education Programs” (IEPs) designed to provide educational benefits. Congress included a requirement that if a parent believes their child’s needs are not being addressed as required by IDEA, they must first exhaust the administrative remedies IDEA makes available before they can go to court. Congress has also passed other laws relevant to children with disabilities, some of which have remedies that IDEA lacks, and they also require all IDEA administrative remedies to be exhausted first before going to court.

A.F., a child with dyslexia, had her case heard on appeal by Judge Gorsuch, who read IDEA to limit parents’ options to most effectively address their children’s educational needs. A.F.’s mother Christine felt the school hadn’t adequately assessed her daughter and created an IEP for her as IDEA requires. She filed a complaint and reached an agreement in which the school recognized that A.F. had a disability. Believing she had met the requirement to exhaust IDEA’s administrative remedies, she then went to court to obtain remedies available under statutes like the Rehabilitation Act and the Americans with Disabilities Act.

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But in A.F. v. Española Public Schools (2015), Judge Gorsuch shut her down. Writing for a divided panel, he ruled that she hadn’t exhausted her administrative remedies because she had reached a settlement with the school district on her IDEA case. To pursue relief available only through statutes other than IDEA, he concluded, a parent must refuse to resolve the IDEA claim.

Judge Mary Beck Briscoe pointed out the bind Judge Gorsuch was imposing on parents of children with disabilities, against congressional intent:

[Judge Gorsuch’s] interpretation is inconsistent with the very purpose of IDEA. It forces a claimant to choose between mediating a resolution to her IDEA claim … and thereby obtaining some or all of the relief sought under IDEA …, or forgoing any relief at all and waiting (while the child ages and potentially continues to receive something other than the requisite “free appropriate public education”) in hopes of later filing suit and obtaining relief under both IDEA and other statutes.

The Sixth Amendment: Undermining the Right to Counsel

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Perhaps no government power is more awesome—and more dangerously susceptible to abuse—than the right to imprison someone, completely taking away their freedom. Because our liberties require robust protection, the Bill of Rights establishes certain requirements that the government must meet before it is allowed to exercise its authority to lock any of us away. Since the criminal law can be used mistakenly or even inappropriately against anyone, these procedural requirements are guarantors of our freedom.

The Founders recognized that unjustified imprisonment would be less likely if each criminal defendant had someone advocating for them who knew the law inside and out. Hence, the Sixth Amendment guarantees that the criminally accused “shall enjoy the right … to have the Assistance of Counsel for his defence.” As a constitutional provision that is part of the Bill of Rights, this indicates that, as a nation, we believe that no one should be stripped of their freedom just because they are not experts in the law.

But Judge Gorsuch appeared to disagree, as he showed in the 2009 case of Williams v. Jones. In this case, Michael Williams was being prosecuted for first-degree murder. The prosecution offered him a deal in which he would plead guilty to a lesser crime (second degree murder) and he would serve ten years in prison. Williams wanted to accept. However, his attorney said that if Williams accepted the deal, he (Williams) would be committing perjury and the lawyer would withdraw from the case.

Faced with this terrible legal advice and threat from his attorney, Williams reluctantly rejected the plea deal and went to trial. He was found guilty of first degree murder and sentenced to life in prison without parole.

At the Tenth Circuit, the panel majority addressed the appropriate remedy for the unconstitutional ineffective assistance of counsel. While the remedy was not an easy issue to address, the majority had no difficulty whatsoever in identifying the constitutional violation. Indeed, a state court in Oklahoma had already found that there was a Sixth Amendment violation in this case.

Judge Gorsuch dissented both from the panel decision and from the whole court’s decision not to reconsider the case en banc. He found no constitutional violation in the first place, because he claimed that the right to effective assistance of counsel only covers the trial, not any pretrial plea bargaining. Since the trial itself appeared to be fair, Gorsuch concluded, Williams didn’t have a case. He wrote that “due process requires a fair trial, not a good bargain.”

The panel majority harshly criticized this extremely cramped view of the right to counsel, noting that it had been rejected by the Supreme Court and was “incompatible with [that Court’s precedents involving] a right to effective assistance of counsel in connection with the entire plea process.” When the circuit without comment declined to reconsider the case en banc, one judge wrote (and two others joined) a concurring opinion solely to correct the errors in Gorsuch’s dissent. They cited the Supreme Court’s prior holdings and statements that would have made no sense if the Sixth Amendment’s right to counsel didn’t apply at the pretrial plea-bargaining stage.

The Sixth Amendment protects both the guilty and the innocent. Judge Gorsuch’s narrow interpretation is particularly frightening in the age of Trump.

Conclusion

These are far from being the only people who have been (or could have been) greatly harmed by the way Judge Gorsuch approaches cases. When Gorsuch’s view carry the day right now, the damage he does is limited to the states covered by the Tenth Circuit; he has also been limited by Supreme Court precedent he may disagree with. Were he to be elevated to the High Court, however, he would be in a position to overrule precedents that have gotten in his way over the past ten years, and the damage he would impose would be nationwide and unreviewable.

Judge Gorsuch may be affable and have many friends, but that is not at all relevant to whether he should be confirmed to the Supreme Court. Few if any of the parties Gorsuch has unfairly ruled against would feel better knowing that he is reputed to be a great guy outside the courtroom.

Prepared for PFAW by Paul Gordon, Senior Legislative Counsel


Report typos and corrections to: [email protected].
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