Sen. Bob Casey (D-PA) spells out in a letter to a constituent his reasons for opposing the confirmation of Judge Neil Gorsuch to the United States Supreme Court.
Thank you for contacting me about the nomination of Judge Neil Gorsuch to the U.S. Supreme Court. I appreciate hearing from you about this issue.
President Trump nominated Judge Gorsuch, who currently sits on the U.S. Court of Appeals for the 10th Circuit, on January 31, 2017. In order to properly discharge the constitutional duty to provide “advice and consent” on judicial nominees, I believe it is my duty as a U.S. senator to evaluate the nominee based on several key criteria: character, temperament, professional and personal experience, judicial philosophy and, of course, prior judicial rulings. When considering nominees to the Supreme Court of the United States, the most powerful court in the world, my obligation to be thorough in this process could not be more serious.
Accordingly, with regard to the nomination of Judge Gorsuch, I have spent hours studying his decisions from his seat on the U.S. Court of Appeals for the 10th Circuit. I have consulted a variety of legal scholars and practitioners to understand the nuances and implications of his approach to the law. I met him personally to discuss his work and his nomination. And I watched closely his testimony before the Judiciary Committee this week.
Judge Gorsuch’s experience as a lawyer and a judge is substantial, and I have found nothing in the record that would disqualify him based on his character, temperament or experience. I do, however, have serious concerns about Judge Gorsuch’s rigid and restrictive judicial philosophy, manifest in a number of opinions he has written on the 10th Circuit. It is a judicial philosophy that employs the narrowest possible reading of federal law and exercises extreme skepticism, even hostility, toward executive agencies.
Judge Gorsuch’s opinions show an approach that yields decisions more suited to satisfy his judicial philosophy than grapple with the complex circumstances faced by ordinary Americans. This approach leads him to come down disproportionately on the side of powerful interests and against workers and consumers, a cause for particular concern at a time when the Supreme Court under Chief Justice Roberts has become an ever more reliable ally to big corporations.
A major study published in the Minnesota Law Review in 2013 found that the four conservative justices currently sitting on the court, Justices Alito, Roberts, Thomas and Kennedy, are among the six most business-friendly Supreme Court justices since 1946. A review by the Constitutional Accountability Center shows the consequences of the court’s corporate tilt, finding that the Chamber of Commerce has had a success rate of 69 percent in cases before the Roberts Court, a significant increase over previous courts. These are cases of serious importance to everyday Americans — cases involving rules for consumer contracts, challenges to regulations ensuring fair pay and labor standards, attempts by consumers to hold companies accountable for product safety and much more.
Judge Gorsuch’s record indicates that he would only exacerbate this problem and further stack the deck against ordinary workers and families. A variety of cases are illustrative of Judge Gorsuch’s troubling approach.
One case involved the tragic death of a trench hand who was electrocuted while working as part of an excavation crew. The court reviewed a ruling by the Department of Labor (DOL) punishing the mining company for failing to provide proper safety training to the worker. Judge Gorsuch mocked the DOL’s ruling as nothing more than a “Delphic declaration” devoid of necessary proof, and concluded that the agency was wrong to penalize the company following the worker’s death. Fortunately, a majority of the court disagreed and affirmed DOL’s ruling.
Another case involved a truck driver who was stranded on the side of the road at night in subzero temperatures with the brakes on his trailer frozen and the heater in his cab broken. He called dispatch for help multiple times, but after hours of waiting in the freezing cold, he was having trouble breathing and his torso and feet were numb. Worried about his safety, he unhitched his trailer and drove the truck away. The company fired him for abandoning his load. Two different authorities within the DOL ruled the firing was illegal and the trucker was protected under federal law. Judge Gorsuch disagreed, parsing a federal statute to argue the driver was not protected in his decision to drive away, despite the risk of freezing to death if he stayed put. Again, fortunately, the majority of the court disagreed, describing Judge Gorsuch’s labored interpretation of the statute as “curious” and ruling in favor of the driver.
Judge Gorsuch has a particularly troubling record when it comes to enforcing legal protections for individuals, particularly students, with disabilities. This case is worth dwelling on since, just this week, the Supreme Court issued a unanimous 8-0 ruling repudiating a previous opinion Judge Gorsuch wrote concerning the rights of a disabled student. In that 10th Circuit case, Thompson R2-J School District v. Luke P., Judge Gorsuch saw fit to overturn three previous rulings in favor of the family of an autistic child. These previous rulings found that the family was entitled to reimbursement for tuition at a residential program tailored for autistic children, since their son Luke was having trouble generalizing the skills he learned at school to his outside life. Judge Gorsuch reversed these rulings, going beyond precedent to articulate the narrowest possible interpretation of the federal law that protects students with disabilities, the Individuals with Disabilities in Education Act (IDEA).
Judge Gorsuch ruled that as long as Luke’s progress was “merely more than de minimis” – essentially anything beyond no progress at all – then the school had satisfied its duty under IDEA to provide a so-called “free and appropriate education.” The Supreme Court’s decision this week highlights the callous absurdity of this approach, even quoting Judge Gorsuch’s opinion to explain that, “a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all … The IDEA demands more.” I agree.
These cases are illustrative of a broader trend in Judge Gorsuch’s jurisprudence. Judge Gorsuch’s approach produces rulings disconnected from the lived experience of those they impact. It’s in that disconnect that ordinary people get hurt — they lose their livelihood, find their rights curtailed or see the courthouse doors closed in their face.
After considering his nomination seriously and without prejudgment, and mindful of the awesome responsibility of passing judgment on nominees to the highest court in the nation, I do not believe Judge Gorsuch’s judicial approach will ensure fairness for workers and families. I will not support his confirmation to the Supreme Court.