WASHINGTON, D.C. – While most of the discourse stayed civil during Tuesday’s confirmation hearing for Supreme Court nominee Neil Gorsuch, some senators were far from cordial to the nominee.
Sen. Al Franken (D-MN), who has vehemently opposed almost all of President Donald Trump’s cabinet nominees, started off questioning Gorsuch in his signature no-holds-barred style.
Coming off a light-hearted exchange between Sen. Ted Cruz (R-TX), Franken quickly changed the tone of the room by immediately launching into harsh criticism of Gorsuch’s dissent against a driver for a Kansas trucking company.
“I understand the reasoning behind your dissent, but I am actually kind of puzzled by it as well,” Franken said.
In TransAm Trucking Inc. v. Administrative Review Board, the Tenth Circuit Court of Appeals decided a trucker had been wrongfully fired after unhitching his trailer and driving away when the trailer’s brakes froze. The company policy required the trucker to stay with his trailer alongside of the road until help could get there. However, the temperature was -14 that night, and the heat was not working in the cab of the truck. Even though the company told the driver to wait for help, he unhitched and left in search of warmth.
The court sided with the trucker, citing a portion of the Surface Transportation Assistance Act (49 U.S.C. § 31105(a)(1)(B)(ii)) which makes it illegal for an employer to fire 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 did not side with the majority. Franken was quick to attack Gorsuch’s line of logic.
“You can freeze to death,” Franken said, defending the trucker’s choice to unhitch to find somewhere warm to wait, “I don’t think you’d want to be on the road with him [with frozen brakes], would you, judge?”
Franken continued to relentlessly question Gorsuch on his decision, asking him what he would have done had he been in the same situation.
“I don’t know what I would have done. I don’t blame him for a moment for doing what he did do. I empathize with him entirely,” Gorsuch said.
Franken didn’t seem to like his response, returning to the question.
“I’m asking you a question. Please answer the question. You don’t know what you would’ve done?” Franken asked incredulously, “I think everybody here would have done exactly what he did. That’s an easy answer.”
In the dissenting opinion, Gorsuch cited the same law used in the majority opinion as a basis for siding with the company. It was his belief that the text of law, which forbids firing an employee for “refusing to operate a vehicle,” did not apply to this scenario. He contended the company acted lawfully, offering the trucker the option to “refuse to operate the vehicle” while he waited for help. When the trucker chose to unhitch and drive away, Gorsuch maintained he stepped outside of the statutory provision.
“It might be fair to ask whether TransAm’s decision was a wise or kind one,” Gorsuch wrote, “But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.”
“And there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid,” he added, “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.”
Franken said Gorsuch’s use of the plain meaning rule was “absurd.”
“That’s absurd. I had a career in identifying absurdity,” Franken said, referring to his role on “Saturday Night Live”, “I know it when I see it, and it makes me question your judgement.”
After spending nearly ten minutes dissecting the TransAm Trucking case, Franken moved onto a rapid-fire round of questioning. He questioned Gorsuch on Merrick Garland being denied a confirmation hearing, his views on marriage equality, comments made by White House Chief of Staff Reince Priebus, and his opinion on the Chevron deference.
Gorsuch refused to be pinned to politics, and politely deflected many of Franken’s invitations to divulge his opinion.
“Senator, I appreciate the invitation, but I know the other side has their views of this, and your side has your views of it. That, by definition, is politics. And Senator, judges have to stay outside of politics,” Gorsuch said.
Watch the full questioning below: