# 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:** 18
**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, 5:31pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/341 "2017-03-24T17:31:06Z")
Has that book return scenario been tested in court? ---
**Author:** ![Thing\_Fish](https://avatars.discourse-cdn.com/v4/letter/t/ecb155/32.png) [@Thing\_Fish](https://boards.straightdope.com/u/Thing_Fish)\ **Post date:** [March 24, 2017, 5:33pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/342 "2017-03-24T17:33:18Z")
> [@Bricker](#): > > No. > > But what does “changing his material circumstances” have to do with the law in play here? Your argument, unstated, is, “Do I realize that the company was asking him to choose between getting fired and freezing to death?” > > Yes. I do. > > Now tell me what law the company violated by doing that. The underlying message here is, “Because the company acted so poorly, we’ll contort the law to achieve justice.” > > Sorry. I prefer to ask the legislature to fix the law. And for all I know, there are a host of civil actions the company’s conduct could trigger. What it should NOT trigger is 49 U.S.C. § 31105(a)(1)(B)(ii) refusal to operate protection. > > Turn it around. Suppose we were discussing identical circumstances, but the law in question said that refusal to operate an assigned vehicle was a permissible termination offense. And the driver said, contesting his firing, “I didn’t refuse to operate – I drove the only part of the equipment I safely could. And I did it to avoid freezing.” > > What would you say then? Would you still contend that “operate” has the same broad meaning? > > I am very confident the answer is no. You’d indignantly (and this time correctly) point out that he did operate the tractor cab. Right? You are posing a hypothetical in which Congress, after due deliberation and a roll call vote, enacted a law saying it is perfectly OK to fire workers for refusing to operate heavy machinery in a way which endangered the general public? Methinks your argument is exactly as valid as that scenario is plausible. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [March 24, 2017, 6:28pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/343 "2017-03-24T18:28:18Z")
> [@Bricker](#): > > He needed the key in the ignition to get heat. So why didn’t he just stay there, idling, getting his heat and radio, and wait? Then he doesn’t get fired. I’ve never read much about the frozen trucker case, but every time I see a report or a description about it, and about how this poor guy’s life was in danger, I wonder the same thing: Why didn’t he just idle and run the heater? I’ve run across a LOT of truck drivers doing exactly this at truck stops all over the mountain west. Was it just a dumb move on the trucker’s part, or was there some reason he couldn’t stay there with the truck running and run the heater in the cab? ---
**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, 6:36pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/344 "2017-03-24T18:36:01Z")
> [@HurricaneDitka](#): > > I’ve never read much about the frozen trucker case, but every time I see a report or a description about it, and about how this poor guy’s life was in danger, I wonder the same thing: Why didn’t he just idle and run the heater? I’ve run across a LOT of truck drivers doing exactly this at truck stops all over the mountain west. Was it just a dumb move on the trucker’s part, or was there some reason he couldn’t stay there with the truck running and run the heater in the cab? I believe the point was that his heater wasn’t working and he was already having issues with numbness in different parts of his body. Pretty sure this was mentioned previously in the thread. ---
**Author:** ![Thing\_Fish](https://avatars.discourse-cdn.com/v4/letter/t/ecb155/32.png) [@Thing\_Fish](https://boards.straightdope.com/u/Thing_Fish)\ **Post date:** [March 24, 2017, 6:39pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/345 "2017-03-24T18:39:35Z")
> [@Bricker](#): > > Out of curiosity, if the copany 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? In that scenario, I would believe the firing was impermissible, since "operate " in that context clearly means “drive”. Words have multiple meanings, which one applies in a particular instance has to be determined by examining the context, and it isn’t always possible to make an unambiguous determination, particularly in the case of complex texts. Most of us figured this out around first grade. It is common practice for long haul truckers to drive until they get tired, then pull over and sleep in the back. There is no evidence that Congress had any intention of interfering with that arrangement, other than to prevent employers from pressuring drivers to drive longer than safely possible without sleeping. While the driver sleeps in the back, he is still “operating” the vehicle in the broad sense of exercising control over it; he is fulfilling his duty to his employer by remaining in the truck, where he will deter potential break-ins by his presence. If he instead checks into a motel and leaves the truck unguarded in the parking lot, he may be fired for failing to appropriately “operate” the truck. If he leaves the truck unguarded because he has been chased away by armed bandits , he may not. Assuming that the word “operate” means the same thing in both cases leads to an absurd result in at least one of them. ---
**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, 6:40pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/346 "2017-03-24T18:40:41Z")
> [@Airbeck](#): > > I believe the point was that his heater wasn’t working and he was already having issues with numbness in different parts of his body. Pretty sure this was mentioned previously in the thread. His “bunk heater” was not working. The cabin heater was working (at least I never saw it mentioned that it wasn’t) but he’d have to run the truck in idle for it to work and for some reason he didn’t do it. ---
**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, 6:43pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/347 "2017-03-24T18:43:00Z")
> [@HurricaneDitka](#): > > I’ve never read much about the frozen trucker case, but every time I see a report or a description about it, and about how this poor guy’s life was in danger, I wonder the same thing: Why didn’t he just idle and run the heater? I’ve run across a LOT of truck drivers doing exactly this at truck stops all over the mountain west. Was it just a dumb move on the trucker’s part, or was there some reason he couldn’t stay there with the truck running and run the heater in the cab? He forgot his last fuel stop, and had stopped to call in to get directions to another company-approved gas station. While he was stopped, his brakes froze. He called in for help, was told it would be coming, and took a nap. Woke up several hours later by a phone call very cold because the aux power unit (the APU) had stopped working and so the cabin got cold. Because he forgot his last fuel stop he was low on fuel, so according to him he couldn’t just idle. ---
**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, 6:44pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/348 "2017-03-24T18:44:51Z")
My understand was that he was in such cold conditions that standard cab heat was insufficient and the auxiliary heater was what was malfunctioning. Can’t find where I read that. ---
**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, 6:46pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/349 "2017-03-24T18:46:22Z")
> [@Bricker](#): > > He forgot his last fuel stop, and had stopped to call in to get directions to another company-approved gas station. While he was stopped, his brakes froze. He called in for help, was told it would be coming, and took a nap. Woke up several hours later by a phone call very cold because the aux power unit (the APU) had stopped working and so the cabin got cold. Because he forgot his last fuel stop he was low on fuel, so according to him he couldn’t just idle. The repair truck arrived 15 min after the driver left. I am sure he could have idled for 15 min at least on the fuel that he had. But all that is irrelevant, really. The question is not whether the driver was right when he left - he definitely could have been. The question is whether the particular law applies. BTW the decision is here: [https://www.ca10.uscourts.gov/opinions/15/15-9504.pdf](https://www.ca10.uscourts.gov/opinions/15/15-9504.pdf) ---
**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, 6:47pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/350 "2017-03-24T18:47:15Z")
> [@Thing\_Fish](#): > > Assuming that the word “operate” means the same thing in both cases leads to an absurd result in at least one of them. The problem is: it’s NOT an absurd result that a company can fire a guy for a shitty reason. That’s the central conceit of at-will employment. ---
**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, 6:54pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/351 "2017-03-24T18:54:01Z")
> [@CarnalK](#): > > Has that book return scenario been tested in court? Not to that extreme, because it’s an absurd scenario designed to illustrate the principle, but generally: yes. At-will employment means generally that employers can fire employees in the same way that employees can quit: at any time, without notice. Different states have different exceptions: an employer may not be able to fire for a variety of different reasons. In federal law, protections also exist for things like whistleblowing. States may provide remedies in contract or tort – the employee can sue, in other words, if he’s fired for certain reasons. But these are distinct from saying that the firing itself is illegal. Do you understand that this is the general rule? ---
**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, 6:55pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/352 "2017-03-24T18:55:47Z")
> [@Thing\_Fish](#): > > If he instead checks into a motel and leaves the truck unguarded in the parking lot, he may be fired for failing to appropriately “operate” the truck. Unless it’s really really cold. ---
**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, 7:01pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/353 "2017-03-24T19:01:43Z")
> [@Bricker](#): > > Not to that extreme, because it’s an absurd scenario designed to illustrate the principle, but generally: yes. At-will employment means generally that employers can fire employees in the same way that employees can quit: at any time, without notice. > > Different states have different exceptions: an employer may not be able to fire for a variety of different reasons. In federal law, protections also exist for things like whistleblowing. States may provide remedies in contract or tort – the employee can sue, in other words, if he’s fired for certain reasons. But these are distinct from saying that the firing itself is illegal. > > Do you understand that this is the general rule? Yes. ---
**Author:** ![septimus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/septimus/32/410_2.png) [@septimus](https://boards.straightdope.com/u/septimus)\ **Post date:** [March 24, 2017, 7:14pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/354 "2017-03-24T19:14:17Z")
I’ve paid no attention to Gorsuch or his confirmation. How accurate is [the summary by Trevor Noah](https://www.youtube.com/watch?v=6W04tMIEuow)? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [March 24, 2017, 7:31pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/355 "2017-03-24T19:31:52Z")
Perhaps you could add more to the debate than posting a YouTube link and asking ‘what do you think?’ Regards, Shodan ---
**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, 7:32pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/356 "2017-03-24T19:32:17Z")
> [@Bricker](#): > > He forgot his last fuel stop, and had stopped to call in to get directions to another company-approved gas station. While he was stopped, his brakes froze. He called in for help, was told it would be coming, and took a nap. Woke up several hours later by a phone call very cold because the aux power unit (the APU) had stopped working and so the cabin got cold. Because he forgot his last fuel stop he was low on fuel, so according to him he couldn’t just idle. Correction: the opinion says, “Maddin [the employee] pulled to the side of the highway because he was unable to find the TransAm-mandated fuel station and his gas gauge was below empty. When he attempted to pull back onto the road ten minutes later, he discovered the brakes on the trailer had locked up because of the frigid temperatures.” And in poking around for more information: at idle, a semi truck goes through about 3 gallons of diesel fuel per hour. Our guy was already past empty on his gauge. I found a message board for truckers with a thread from 2010 talking about APUs, and they apparently use about a pint of fuel an hour. One person mentioned he’d rather risk a fine for idling than use an APU, so apparently excessive idling is prohibited by law in some places. In addition, some companies evidently configure their trucks so that they can’t idle more than 5 minutes, or at least used to; remember, this was back in 2009, when fuel prices were quite a bit higher than they are now. In January 2009, the statewide average temperature in Illinois was 20 degrees F. Probably colder at midnight (the brakes froze at 11:17, help got there 2:45 later). ---
**Author:** ![Thing\_Fish](https://avatars.discourse-cdn.com/v4/letter/t/ecb155/32.png) [@Thing\_Fish](https://boards.straightdope.com/u/Thing_Fish)\ **Post date:** [March 24, 2017, 7:59pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/357 "2017-03-24T19:59:14Z")
> [@Max\_Torque](#): > > Correction: the opinion says, “Maddin [the employee] pulled to the side of the highway because he was unable to find the TransAm-mandated fuel station and his gas gauge was below empty. When he attempted to pull back onto the road ten minutes later, he discovered the brakes on the trailer had locked up because of the frigid temperatures.” OK. So theoretically, it’s not true to say that the trucker had to choose between 1) abandoning the trailer and 2) freezing to death. If that were so, you could argue that this is a matter between him and his employer, with no compelling public interest at stake that would justify government intervention. But he also had option 3) available: try to disable the brakes and continue driving the rig down the freeway without them. Obviously, there is a massively compelling public interest in discouraging him from choosing that one, and it’s equally obvious that the law in question was passed to protect that interest. And since common sense tells us that he isn’t going to choose #2, the public interest demands that any ambiguity in the law needs to be interpreted in a way that doesn’t dis-incentivize him from picking #1. This aspect of endangering the general public, by the way, is conveniently absent from any of Bricker’s silly hypotheticals about library books and the like. ---
**Author:** ![Thing\_Fish](https://avatars.discourse-cdn.com/v4/letter/t/ecb155/32.png) [@Thing\_Fish](https://boards.straightdope.com/u/Thing_Fish)\ **Post date:** [March 24, 2017, 8:15pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/358 "2017-03-24T20:15:01Z")
> [@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? I don’t expect him to accept that the majority decision is\* correct\*, but it would sure be nice if he’d drop the attitude that the opinion of multiple Federal judges is _so obviously incorrect that no intelligent, intellectually honest person could possibly think otherwise._ ---
**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, 8:20pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/359 "2017-03-24T20:20:38Z")
> [@Thing\_Fish](#): > > OK. So theoretically, it’s not true to say that the trucker had to choose between 1) abandoning the trailer and 2) freezing to death. If that were so, you could argue that this is a matter between him and his employer, with no compelling public interest at stake that would justify government intervention. > > But he also had option 3) available: try to disable the brakes and continue driving the rig down the freeway without them. Obviously, there is a massively compelling public interest in discouraging him from choosing that one, and it’s equally obvious that the law in question was passed to protect that interest. And since common sense tells us that he isn’t going to choose #2, the public interest demands that any ambiguity in the law needs to be interpreted in a way that doesn’t dis-incentivize him from picking #1. > > This aspect of endangering the general public, by the way, is conveniently absent from any of Bricker’s silly hypotheticals about library books and the like. He was actually given two options: 1) stay put with the trailer, or 2) drag the trailer and its non-functioning brakes down the road. Either one was unsafe. Semi trailer brakes, the way I understand it, are air brakes. A spring system on the brake clamps holds the clamps tight. Pressure in an air hose is required to work against the springs and un-clamp the brakes. If pressure is lost, the brakes clamp tight. It sounds like either the system lost pressure, or the brakes froze in the clamped position when he stopped and the air pressure wasn’t sufficient to make them reopen, since the opinion refers to “dragging the trailer”, which makes it sound as though the wheels are locked. If I’m wrong about how trailer brakes operate, anyone, please correct me. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [March 24, 2017, 8:23pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/360 "2017-03-24T20:23:26Z")
> [@Thing\_Fish](#): > > I don’t expect him to accept that the majority decision is\* correct\*, but it would sure be nice if he’d drop the posturing that the opinion of multiple Federal judges is _so obviously incorrect that no intelligent, intellectually honest person could possibly think otherwise._ This doesn’t make sense in the context of the discussion here. There are two questions being discussed here: [ol] [li]What is the correct approach to judges interpreting the law?[/li][li]What is the correct meaning of the term “operate”?[/li][/ol] Not to speak for Bricker, but as I understand the argument, Bricker agrees that if you buy into the legal philosophy that a judge has free hand to come up with fanciful interpretations of words and sentences in statutes if it produces a more just result, then it’s reasonable for the judges in that case to introduce that meaning of “operate” into the text. Point is that he disagrees with that legal philosophy. It’s the second question being discussed where you’re disagreeing now. Is the definition used by the majority in that case indeed a fanciful one, only justified by the judicial philosophy that allows for this, or is it a reasonable one in any event? Here’s where you’re getting the more forceful disagreement. Pointing to the judges and trying to prove that you’re correct as to the second issue is logically invalid. Because the counterargument is that these judges ruled that way only because they approach the law with a different legal philosophy. No one is denying that activist judges exist. The only question is whether these particular judges are activist. [Previous page](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653.md?page=17) [Next page](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653.md?page=19)