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Al Franken Crossed the Line With Gorsuch Chastising


Tuesday’s round of questioning during Supreme Court nominee Neil Gorsuch‘s confirmation hearing tended to bounce between two extremes: Republicans praising Gorsuch and giving him softball questions that he could answer with thoughtful, charming responses, and Democrats trying to play gotcha, asking questions about pertinent legal issues and Gorsuch’s record, with the judge deftly dodging and parrying. But then came Senator Al Franken (D-MN). In stark contrast to Senator Ted Cruz‘s adoring exchange with the nominee, Franken angrily and disrespectfully chastised Judge Gorsuch, calling a dissent that he wrote in a case “absurd.” While Franken is a smart guy and I often like him, he was over the line and out of his element here.

Franken started his criticism by saying, “I’m not a lawyer, but I’ve been here for eight years and I pay attention.” Stop right there, Al. As an attorney, nothing infuriates me more than non-lawyers thinking that just because they’re smart and read a few cases, they’re somehow on equal footing with someone who went through three years of law school, let alone a federal freakin’ judge. Feel free to disagree with Gorsuch’s opinion, but calling his legal reasoning absurd is absurd in itself.

For those of you who weren’t watching, Franken was specifically talking about the case of TransAm Trucking v. Dept. of Laborcommonly referred to these days as the “Frozen Truck Driver Case.” Some background: Alphonse Maddin, a truck driver, sued his former employer after he was fired for abandoning his truck after the brakes froze, he was low on gas, the heat was out, and he had been sitting in the bitter cold waiting for help. He told the company that he felt signs of hypothermia, and they told him to stay put or drag the trailer with frozen brakes. Instead, he unhitched the trailer and drove off to find gas. TransAm fired him for disobeying orders. Maddin filed a complaint, and both an Administrative Law Judge and the U.S. Department of Labor Administrative Review Board ruled in his favor, ordering him to be reinstated. TransAm appealed to the Tenth Circuit Court of Appeals, which also ruled in favor of Maddin in a 2-1 decision. The dissenting judge, or course, was Neil Gorsuch.

Now, if this is the only information you have about the case, it would be perfectly reasonable to determine that Gorsuch is a monster whose heart is colder than Maddin’s truck. The poor guy was freezing to death, and his employer fired him for trying to protect himself! There ought to be a law against this sort of thing! Well, Gorsuch didn’t argue against whether there should be a law against it, he just said that the law at issue in the case wasn’t that law. And you know what, Senator Franken, not only is Gorsuch’s view not absurd, it just might be correct.

The statute here is 49 U.S. Code § 31105(a)(1)(B)(ii), which says, “A person may not discharge an employee … [who] refuses to operate a vehicle because … the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition.” As Gorsuch notes in his dissent, “nothing like that happened here.” Maddin wasn’t fired for refusing to operate a vehicle. He refused to stay in the vehicle without operating it, and instead, operated the truck without the trailer. Gorsuch says that the law here just doesn’t apply to Maddin’s situation, and he criticizes his colleagues for treating the law’s use of the word “operate” as ambiguous, when no one had even made that argument.

Whether you agree with Gorsuch’s position or not, he has a really good point. He’s not saying he doesn’t sympathize with Maddin, he just says it’s not the court’s job to create laws that accommodate him. That’s reasonable. Those on the other side say that the law should be interpreted to include Maddin’s situation who was fired for not wanting to freeze to death. And that’s reasonable too. For someone, especially someone without a legal background, to tell a judge that either position is absurd is to gloss over the law and to disrespect the bench. And that’s not reasonable.

What’s also not reasonable is for a Senator to use a Supreme Court confirmation hearing to grandstand by excoriating a nominee. If Franken disagreed with Gorsuch’s opinion, he could have asked him questions to challenge him without lowering the level of discourse to petty insults. Franken’s fellow Minnesota Democrat, Senator Amy Klobuchar, was able to respectfully grill Gorsuch, and was much more effective in doing so. Of course, Franken’s effectiveness depends ultimately on what his goal was here: to challenge a Supreme Court nominee or to boost his own political profile.


This is an opinion piece. The views expressed in this article are those of just the author.

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