# Gorsuch confirmation hearing **URL:** \ **Category:** Great Debates\ **Created:** [March 20, 2017, 10:05pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653 "2017-03-20T22:05:35Z")\ **Posts on this page:** 20\ **Page:** 17
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [March 24, 2017, 3:25pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/321 "2017-03-24T15:25:11Z")
Staying there and using the cab as his guard post is a dangerous operation of the truck. Can’t be fired for refusing a dangerous operation. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 24, 2017, 3:27pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/322 "2017-03-24T15:27:12Z")
> [@CarnalK](#): > > Staying there and using the cab as his guard post is a dangerous operation of the truck. Can’t be fired for refusing a dangerous operation. Third time: Do you understand that if you work for me, and I ask you to return books I borrowed to the library, and you arrive at the library only to discover a hostage situation underway, a burning car near the front door, and live anthrax spores released into the air, and you decide to not enter the danger area, I can legally fire you? That if I order you to go in and you don’t, I can fire you? Yes or no? ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [March 24, 2017, 3:30pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/323 "2017-03-24T15:30:50Z")
> [@CarnalK](#): > > Staying in the parked cab was a dangerous order. He feared freezing to death if he stayed and guarded the traiker as ordered. That may be true. But what does that have to do with the law that was discussed in the court decision? He was not fired for “operating” anything or refusing to “operate” anything. He was fired for leaving the trailer when he was explicitly told not to. Yes, it was dangerous to stay there if he was in danger of freezing to death. Yes, I would have left as well. And I would have gotten fired. And there is no law preventing that from happening. Judges cannot make their decisions based on “there oughta be a law” mentality. They should make their decisions on “there is a law” mentality. ---
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [March 24, 2017, 3:35pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/324 "2017-03-24T15:35:00Z")
> [@Bricker](#): > > No. It’s not closed. Operate cannot mean “remain in the vicinity of.” It’s true he refused to “control the functioning of” the trailer. Yes. Good. No problems there. > > But that’s not why he was fired. He was fired for LEAVING. > > He refused to control the functioning of the trailer, and his job was safe. Then he left it and went away from it. That’s the action that got him fired. You are incorrect. At least, the administrative review board says that you are incorrect, and two judges on the Tenth Circuit Court of Appeals say that you are incorrect. He was not fired for leaving. He was fired for “refusing to operate”, using the definition of “operate” as “control the functioning of”. He was directed to remain in control of the trailer, and he refused because it was unsafe to do so. Why is this so hard for you to understand? Why can you not accept that the definition applied by the ARB and the Tenth Circuit is the correct one? Is it because you, like Gorusch, are applying only the definition that you think applies, even though the term is undefined? > [@](#): > > Lots of Deomcratic “words mean anything they need to if it helps the helpless” on display here. > > In my opinion. I note that in another recent thread you posted, > [@](#): > > If I’m discussing the law, I might well make definitive statements, but typically with citation to case law. Other than that, I usually caveat what I say with phrases like, “In my view,” or “In my opinion,” or “As I see it…” Yet you do not note here that your limited definition of “operate” is only your opinion, not the law. Curious. ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [March 24, 2017, 3:38pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/325 "2017-03-24T15:38:45Z")
> [@Max\_Torque](#): > > He was fired for “refusing to operate”, using the definition of “operate” as “control the functioning of”. Please explain how you “control the functioning of” the trailer by remaining in its vicinity. How exactly is the trailer “functioning” when it is sitting there, motionless? Talk about stretching the definitions to achieve the result you want. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 24, 2017, 3:41pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/326 "2017-03-24T15:41:21Z")
> [@Max\_Torque](#): > > You are incorrect. At least, the administrative review board says that you are incorrect, and two judges on the Tenth Circuit Court of Appeals say that you are incorrect. He was not fired for leaving. He was fired for “refusing to operate”, using the definition of “operate” as “control the functioning of”. He was directed to remain in control of the trailer, and he refused because it was unsafe to do so. > > Why is this so hard for you to understand? Why can you not accept that the definition applied by the ARB and the Tenth Circuit is the correct one? Is it because you, like Gorusch, are applying only the definition that you think applies, even though the term is undefined? Because we both know that if the position of the parties were reversed, I’d still be arguing for the same definition of “operate,” and you’d be arguing for the definition that created “justice” as best you saw it. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [March 24, 2017, 3:46pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/327 "2017-03-24T15:46:28Z")
> [@Okrahoma](#): > > If Democrats filibuster, the filibuster goes away. Guaranteed. It would really only take 2 (or is it 3?) Republicans to desire to preserve the filibuster for it to remain. I would not make such a guarantee myself - but I think it’s a good bet. > [@Budget\_Player\_Cadet](#): > > My apologies. It’s just that the [Washington Post](https://www.washingtonpost.com/news/monkey-cage/wp/2017/02/15/neil-gorsuch-could-be-the-most-conservative-justice-on-the-supreme-court/?utm_term=.22c9ebfb02f3) cites different research that comes to a similar conclusion, based this time on the actual decisions handed down. I don’t think the research cited by WaPo comes to the same conclusion specifically. The conclusions you posted previously were: [ol] [li]Gorusch is more conservative than Scalia. [/li][li]He’s more conservative than 87% of all other federal judges[/li][/ol] I will gladly acknowledge that Gorsuch is what is typically described as conservative in his judicial philosophy. That part isn’t in question so the pronouncement that he is conservative is not really surprising or controversial. But is he more conservative than Scalia? Well I think that will depend on how it’s measured. In looking at the actual research [here is how they describe the methodology](https://poseidon01.ssrn.com/delivery.php?ID=463070022024115107067081072066084109057049057076086029076124070089067076006025124093117033048052107045040092015030109026003100021041003015023095115101069106112027057034084067067065118069119093084022126090086069094100003020079001100103077016111029101&EXT=pdf): > [@](#): > > Taking a different approach to estimate Gorsuch’s ideology and where he will fit on the Court, we apply a standard one-dimensional item response theory model. This approach estimates the ideal point of Gorsuch in the same policy space as his would-be colleagues on the Supreme Court. To do so, we started by gathering all dissenting opinions filed on the Tenth Circuit from January 1, 2006 through February 4, 2017. We used Lexis-Nexis Academic Universe to obtain a total of 345 opinions. We then simply coded these opinions for whether a judge voted with the majority or with the dissent. Votes that were “mixed” (e.g., dissent in part) were coded as dissents, as were dissents from the denial of en banc rehearing. This yielded a total of 1246 judge votes, 86 of which involved Gorsuch. > > … > > In a perfect world, we would have instances where the justices of the Supreme Court sat alongside judges from the Tenth Circuit and decided the same case. Alas, such data do not exist. Nevertheless, we do observe cases where the Supreme Court reviewed decisions by the Tenth Circuit. The High Court reviewed 26 such cases between 2007 and 2016. We use these observations as though they were the justices voting on the same panel as the Tenth Circuit. The research cited does show that Gorsuch as measured would be more conservative than Scalia, however I’m not sure how meaningful that is. It certainly isn’t disqualifying, IMO, as you indicated previously. A few things stand out to me about the methodology though: Why just the dissents? Is it fair to base their assessment on 26 overlapping cases? Is it reasonable to do this type of analysis when the two courts are faced with different circumstance, different negotiations, and serving a different purpose? This methodology would be more robust if it was conducted for other jurists where the results are more known - say for the current members of SCOTUS when they served in an appellate role. So two things. First, I grant that Gorsuch is conservative - whether the magnitude of his conservatism is greater than Scalia I’m not convinced, but I am convinced it doesn’t matter. Second, the 87% figure is without merit. ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [March 24, 2017, 3:48pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/328 "2017-03-24T15:48:26Z")
> [@Bone](#): > > It would really only take 2 (or is it 3?) Republicans to desire to preserve the filibuster for it to remain. I would not make such a guarantee myself - but I think it’s a good bet. When you lose McCain and Graham, it’s a 100% guarantee. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [March 24, 2017, 3:50pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/329 "2017-03-24T15:50:47Z")
> [@Okrahoma](#): > > When you lose McCain and Graham, it’s a 100% guarantee. Here’s how I view a guarantee - I would bet everything I own knowing that it is certain. In this case, I would not do that, therefore guarantee is too strong. Several things can happen that are unknown that would foreclose the possibility of eliminating the filibuster that are well within the realm of possibility. McCain and Graham could both die, for instance. Dying tends to screw with guarantees. ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [March 24, 2017, 3:54pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/330 "2017-03-24T15:54:26Z")
> [@Bone](#): > > Here’s how I view a guarantee - I would bet everything I own knowing that it is certain. In this case, I would not do that, therefore guarantee is too strong. Several things can happen that are unknown that would foreclose the possibility of eliminating the filibuster that are well within the realm of possibility. McCain and Graham could both die, for instance. Dying tends to screw with guarantees. Or a SMOD could wipe us out. But by that logic, nothing at all is ever 100% certain. Fine. 99.99% certain. I will take any bet anyone proposes on Gorsuch’s eventual confirmation. If SMOD comes, money won’t mean much anyway. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [March 24, 2017, 4:04pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/331 "2017-03-24T16:04:12Z")
> [@Okrahoma](#): > > Or a SMOD could wipe us out. But by that logic, nothing at all is ever 100% certain. Fine. 99.99% certain. I will take any bet anyone proposes on Gorsuch’s eventual confirmation. If SMOD comes, money won’t mean much anyway. How about, I bet you at 100,000:1 odds that Gorsuch is not confirmed by the end of 2018. If I lose and Gorsuch is confirmed by the end of 2018, I pay you $1. If you lose, and Gorsuch is not confirmed by the end of 2018, you pay me $100,000. Do we have a bet? ---
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [March 24, 2017, 4:07pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/332 "2017-03-24T16:07:14Z")
> [@Okrahoma](#): > > Please explain how you “control the functioning of” the trailer by remaining in its vicinity. How exactly is the trailer “functioning” when it is sitting there, motionless? Talk about stretching the definitions to achieve the result you want. The employee controlled the functioning of the trailer in that, while the trailer was in his presence, he was in charge of directing whether or not it went anywhere (whether or not it “functioned”). Similarly, I am operating my computer, even when I’m not actively using it, because I control whether or not it is doing something. ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [March 24, 2017, 4:08pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/333 "2017-03-24T16:08:01Z")
> [@Bone](#): > > How about, I bet you at 100,000:1 odds that Gorsuch is not confirmed by the end of 2018. If I lose and Gorsuch is confirmed by the end of 2018, I pay you $1. If you lose, and Gorsuch is not confirmed by the end of 2018, you pay me $100,000. Do we have a bet? I was not talking odds bets. I was talking 1:1 bet. It’s not worth the $1 I get. And if it’s any significant value, I can’t cover the 100,000:1 odds. I am not at Trump’s level of wealth. Yet. But I will take the 10:1. Your $10 vs my $100. Deal? ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [March 24, 2017, 4:09pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/334 "2017-03-24T16:09:43Z")
> [@Max\_Torque](#): > > The employee controlled the functioning of the trailer in that, while the trailer was in his presence, he was in charge of directing whether or not it went anywhere (whether or not it “functioned”). Similarly, I am operating my computer, even when I’m not actively using it, because I control whether or not it is doing something. That’s a huge stretch. That would lead to an absurd result that I am “operating” my computer in my locked house when I am on the other continent. Because I control whether or not it is doing something. ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [March 24, 2017, 4:16pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/335 "2017-03-24T16:16:34Z")
> [@Okrahoma](#): > > I was not talking odds bets. I was talking 1:1 bet. > > It’s not worth the $1 I get. And if it’s any significant value, I can’t cover the 100,000:1 odds. I am not at Trump’s level of wealth. Yet. > > But I will take the 10:1. Your $10 vs my $100. Deal? Suddenly “certainty” sounds a lot like “I’m very confident”… 10:1 is pretty weak! ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [March 24, 2017, 4:18pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/336 "2017-03-24T16:18:46Z")
> [@Okrahoma](#): > > But I will take the 10:1. Your $10 vs my $100. Deal? Well no, I think that bet is still in your favor 🙂 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 24, 2017, 4:26pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/337 "2017-03-24T16:26:47Z")
> [@Max\_Torque](#): > > The employee controlled the functioning of the trailer in that, while the trailer was in his presence, he was in charge of directing whether or not it went anywhere (whether or not it “functioned”). Similarly, I am operating my computer, even when I’m not actively using it, because I control whether or not it is doing something. Out of curiosity, if the company fired him for operating his rig too many hours without rest, and the facts were that he had pulled into a rest stop, turned off the engine, and was sleeping in the back, how would you react? ---
**Author:** ![Airbeck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/airbeck/32/6574_2.png) [@Airbeck](https://boards.straightdope.com/u/Airbeck)\ **Post date:** [March 24, 2017, 4:28pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/338 "2017-03-24T16:28:40Z")
> [@Okrahoma](#): > > I was not talking odds bets. I was talking 1:1 bet. That’s not what you said. You said: > [@Okrahoma](#): > > I will take any bet anyone proposes on Gorsuch’s eventual confirmation ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [March 24, 2017, 4:35pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/339 "2017-03-24T16:35:00Z")
> [@Bricker](#): > > Out of curiosity, if the company fired him for operating his rig too many hours without rest, and the facts were that he had pulled into a rest stop, turned off the engine, and was sleeping in the back, how would you react? AFAIK that has nothing to do with the law in question as it doesn’t involve giving or following an unsafe order. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 24, 2017, 4:46pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/340 "2017-03-24T16:46:29Z")
> [@CarnalK](#): > > AFAIK that has nothing to do with the law in question as it doesn’t involve giving or following an unsafe order. True. But it has to do with the meaning of the word “operate.” I’m trying to explore whether “operate” means one thing in 49 U.S.C. § 31105(a)(1)(B)(ii) and something different in other rules. Notice how I answer your questions and you refuse to answer mine? Fourth time: Do you understand that if you work for me, and I ask you to return books I borrowed to the library, and you arrive at the library only to discover a hostage situation underway, a burning car near the front door, and live anthrax spores released into the air, and you decide to not enter the danger area, I can legally fire you? That if I order you to go in and you don’t, I can fire you? Yes or no? [Previous page](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653.md?page=16) [Next page](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653.md?page=18)