Federal Courts and Nominations

OP-ED: Does Business Have a Pal in Neil Gorsuch?

The business community has reacted to President Donald Trump’s nomination of Judge Neil Gorsuch to the U.S. Supreme Court with barely restrained glee. A “fantastic nomination,” said an official with the U.S. Chamber of Commerce. “[W]e expect the court to return to its business-friendly leanings,” wrote lawyers with a global law firm.

And who could blame them? The business community, as explained more fully in a new report by my organization, sees much to like in Gorsuch’s record on the U.S. Court of Appeals for the Tenth Circuit. In addition to areas including arbitration and regulation, they see a judge who favors cramped interpretations of laws that are supposed to protect workers and others.Under U.S. Supreme Court Chief Justice John Roberts, the U.S. Chamber of Commerce has seen a sharp increase in its success at the Supreme Court. Since 2006, the Roberts court has ruled for the chamber’s position nearly 70 percent of the time, led by the court’s conservatives. Clearly, the business community expects to maintain its grip on the court with Gorsuch help.

As one leading example, business interests are encouraged by Gorsuch’s dissenting opinion in the case of TransAm Trucking v. Administrative Review Board, Department of Labor. Alphonse Maddin was a truck driver who had been stopped for hours in subzero temperatures, in an unheated cab, waiting for repairs to the frozen brakes on his trailer. Though his feet and torso were going numb, his employer nevertheless told him either to stay with the trailer and wait for repairs or drive off with it, despite its frozen brakes. Maddin did neither. He unhooked the trailer, drove to safety and was subsequently fired.

The Tenth Circuit majority ruled the firing unlawful, holding that Maddin was protected by a federal safety statute that prohibits employers from firing 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.”

Gorsuch disagreed. He would have held that the company was justified in firing Maddin because, in driving off to safety, he had not actually “refused to operate” his vehicle, disregarding the majority’s conclusion that his refusal to operate his vehicle in the unsafe manner directed by his employer qualified him for protection under the safety law.

Gorsuch’s crabbed reading of the law focused narrowly on several words of text, ignoring the statute as a whole and Congress’ plan in enacting it … that was “to promote the safe operation of commercial motor vehicles” and “to minimize dangers to the health of operators of commercial motor vehicles.” As The Associated Press noted, “Gorsuch’s fidelity to literal texts can lead to findings that appear to defy common sense and fairness.”

In addition, an examination of Gorsuch’s record by business advocates concluded that “Judge Gorsuch’s opinions … suggest that his confirmation would restore the pro-arbitration direction of the court,” pointing to Ragab v. Howard. In that case, the Tenth Circuit denied a motion to compel arbitration because the parties had signed six different agreements, each containing different and conflicting arbitration provisions. Because there wasn’t a single arbitration agreement to enforce, the court held that arbitration could not be compelled. Gorsuch dissented, arguing that “workarounds” could have been used to force the parties into arbitration, despite conflicting agreements.

If confirmed, would a Justice Gorsuch be yet another reliable vote for corporate interests at the Supreme Court? Americans have cause to wonder. After all, that’s clearly what the business community is expecting.

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