# 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:** 8
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [March 22, 2017, 9:13pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/141 "2017-03-22T21:13:02Z")
> [@Max\_Torque](#): > > IMHO, the Democrats ( **and, you know, people with empathy in general** ) would be justified in voting against Garland based on his dissenting opinion in _TransAm Trucking v. Administrative Review Board_. From Sotomayor confirmation hearings: Kyl: “[The president] talked once about the first 25 miles of a 26-mile marathon, and then he also said in 95 percent of the cases the law will give you the answer and the last 5 percent legal process will not lead you to the rule of decision. The critical ingredient in those cases is supplied by what is in the judge’s heart. Do you agree with him that the law only takes you the first 25 miles of a marathon and that that last mile has to be decided by what’s in the judge’s heart?” Sotomayor: “No, sir. That’s – I don’t – wouldn’t approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, **which is judges can’t rely on what’s in their heart**. They don’t determine the law. Congress makes the laws. The job of a judge is to apply the law.” ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [March 22, 2017, 9:21pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/142 "2017-03-22T21:21:58Z")
> [@Rick\_Kitchen](#): > > [The Supreme Court unanimously overturned a Gorsuch ruling in the middle of his confirmation hearings.](http://www.dailykos.com/story/2017/3/22/1646072/-Unanimous-Supreme-Court-overturns-a-Gorsuch-decision-in-the-middle-of-his-confirmation-hearing) I’m looking at what SCOTUSblog says is the [10th Circuit opinion](http://www.scotusblog.com/wp-content/uploads/2016/05/15-827-opinion-below.pdf) which was the subject of today’s SCOTUS ruling. The opinion appears to have been written by 10th Circuit Court of Appeals[Chief Judge Timothy Tymkovich](https://www.ca10.uscourts.gov/judges/judge-timothy-m-tymkovich), writing for a three judge panel which included judges [Hartz](https://www.ca10.uscourts.gov/judges/judge-harris-l-hartz)and [Phillips](https://www.ca10.uscourts.gov/judges/judge-gregory-phillips). How was judge Gorsuch involved in this case? Was there an _en banc_ rehearing I am not finding? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 22, 2017, 9:25pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/143 "2017-03-22T21:25:20Z")
> [@Max\_Torque](#): > > Gorsuch dissented, siding with the trucking company, and likening the situation to an employee “operating” an office computer by writing a novel rather than working. Not exactly the same situation as our trucker. The opinion is very coldly indifferent to the Sophie’s Choice-like situation the trucker found himself in: drag the trailer, which was unsafe and illegal, or sit there and freeze. Reminds me of Stallone’s **Judge Dredd** : This goes to the heart of what you apparently want judges to do, and what I want judges to do. You want warm sympathy and not cold indifference. I want them to read the law and apply it as written. TransAm has a right to fire its employees, unless a law forbids them from doing so. What law forbid them from firing the trucker? The Department of Labor said that 49 U.S.C. § 31105(a)(1)(B) prevented TransAm from firing Maddin. That statute protects an employee from termination if he "…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.” In this case, he was not fired because he refused to operate a vehicle. He was fired because he left his trailer by the side of the road. The panel majority found that he “refused to operate” by driving away, because “operate” can mean other things besides driving. It’s pretty clear to me that the panel majority wanted to correct a shitty company termination. They saw a guy who was given a shitty choice and unfairly fired, and they had a chance to make sure the right thing was done. Their hearts are pure. But that’s not what judges should do, in my opinion. And the reason that’s not what judges should do is because someday you’ll be faced with judges who don’t agree with you about “the right thing,” but have taken the lesson to heart that it’s OK to tweak the plain language of the law in favor of “the right thing.” I prefer to enshrine the right thing in the text of the law, and count on judges to coldly and dispassionately apply it. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [March 22, 2017, 9:39pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/144 "2017-03-22T21:39:43Z")
> [@Iggy](#): > > … > How was judge Gorsuch involved in this case? Was there an _en banc_ rehearing I am not finding? A bit more digging. Gorsuch was involved in other cases similar in nature to the subject at hand. He did not write, nor apparently was he involved in, the opinion that was overruled today. Sen Durbin took exception to Gorsuch’s characterization of the precedential standard as applied in a different, but similar, case. In any event, SCOTUS has ruled. And from hearing what the old standard was, seems we can all be grateful they overturned. _Stare decisis_ is a bitch sometimes. ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [March 22, 2017, 9:40pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/145 "2017-03-22T21:40:58Z")
> [@Rick\_Kitchen](#): > > [The Supreme Court unanimously overturned a Gorsuch ruling in the middle of his confirmation hearings.](http://www.dailykos.com/story/2017/3/22/1646072/-Unanimous-Supreme-Court-overturns-a-Gorsuch-decision-in-the-middle-of-his-confirmation-hearing) > [@Iggy](#): > > A bit more digging. Gorsuch was involved in other cases similar in nature to the subject at hand. He did not write, nor apparently was he involved in, the opinion that was overruled today. So - fake news? ---
**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 22, 2017, 9:51pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/146 "2017-03-22T21:51:02Z")
Well, [read the opinion and dissent yourself](https://www.ca10.uscourts.gov/opinions/15/15-9504.pdf) and see what you think. It appears to me that Gorusch’s argument is, “Well, the statute protects him only if he refuses to operate, and he drove the truck after unhitching the trailer, so he was operating, so the statute doesn’t apply.” He doesn’t consider that the “refusal to operate” encompasses both the truck and the trailer. Gorusch’s definition of “operate” appears to contemplate any use of the truck as placing the driver outside the statute’s protections, which is far too rigid an interpretation. Anyway, read the opinion. Gorusch comes across as glibly cruel. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 22, 2017, 9:52pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/147 "2017-03-22T21:52:02Z")
> [@Okrahoma](#): > > Sotomayor: > > “No, sir. That’s – I don’t – wouldn’t approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, **which is judges can’t rely on what’s in their heart**. They don’t determine the law. Congress makes the laws. The job of a judge is to apply the law.” **MaxTorque** : should people with empathy have voted against her? Or was she saying something she didn’t believe? Or, something else? ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [March 22, 2017, 9:54pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/148 "2017-03-22T21:54:41Z")
> [@Bricker](#): > > Correct. I don’t agree that there was any major break with prior accepted practice, considering the Bork precedent. At best, the refusal to even hold a hearing, as opposed to holding a meaningless hearing with a foreordained result, is something I argue is relatively trivial. I certainly don’t accept the notion that this constitutes a “stolen,” seat, unless we’re also calling Bork’s seat stolen. I didn’t realize that, after his nomination failed, Bork’s putative seat remained empty until the next Democratic administration. Which was, what, five years later? Man, the things you learn on the Straight Dope, eh? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 22, 2017, 9:56pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/149 "2017-03-22T21:56:06Z")
> [@Max\_Torque](#): > > Well, [read the opinion and dissent yourself](https://www.ca10.uscourts.gov/opinions/15/15-9504.pdf) and see what you think. It appears to me that Gorusch’s argument is, “Well, the statute protects him only if he refuses to operate, and he drove the truck after unhitching the trailer, so he was operating, so the statute doesn’t apply.” He doesn’t consider that the “refusal to operate” encompasses both the truck and the trailer. Gorusch’s definition of “operate” appears to contemplate any use of the truck as placing the driver outside the statute’s protections, which is far too rigid an interpretation. > > Anyway, read the opinion. Gorusch comes across as glibly cruel. Yes, I have read it. And the company did not fire Maddin for refusing to operate the trailer. They fired him for leaving the trailer by the road and driving away from it. He may come across as cruel, but that’s because the company’s decision was simultaneously cruel and legal. So for Gorsuch to apply the law as written, he is necessarily saying he’d allow a cruel result to stand. I say that if the law as written allows for a result like this, that’s cruel, then it’s not for a judge to fix it. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 22, 2017, 10:08pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/150 "2017-03-22T22:08:16Z")
> [@Miller](#): > > I didn’t realize that, after his nomination failed, Bork’s putative seat remained empty until the next Democratic administration. Which was, what, five years later? > > Man, the things you learn on the Straight Dope, eh? That’s not what happened, actually. Following Bork’s rejection, Anthony Kennedy, a much more moderate jurist, was nominated and confirmed. (Actually, he was the third nominee for the seat; Douglas Ginsburg was the second but withdrew following revelations concerning his marijuana use.) Not sure why you’d believe that the seat remained empty for that long. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [March 22, 2017, 10:17pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/151 "2017-03-22T22:17:48Z")
> [@Bricker](#): > > That’s not what happened, actually. Following Bork’s rejection, Anthony Kennedy, a much more moderate jurist, was nominated and confirmed. (Actually, he was the third nominee for the seat; Douglas Ginsburg was the second but withdrew following revelations concerning his marijuana use.) > > Not sure why you’d believe that the seat remained empty for that long. Well, you said that his seat was “stolen” in the same way that Garland’s seat was stolen, so I assumed that meant that the Democrats prevented Reagan from filling the seat at all until they got their own guy in the White House. Not that Reagan simply didn’t get his first pick for the role. So, remind me again how they’re effectively the same thing? Because those are actually two very different situations. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [March 22, 2017, 10:29pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/152 "2017-03-22T22:29:04Z")
> [@Okrahoma](#): > > So - fake news? I would say the matter has been imprecisely reported by Daily Kos. And it seems **Rick Kitchen** quoted the Daily Kos headline that had a detail wrong. Today’s SCOTUS ruling did not overturn “a Gorsuch ruling” with today’s decision. The Daily Kos article criticizes a Gorsuch decision in a case, _Luke P._, that was not under appeal to SCOTUS. And the Daily Kos article does not disclose that the SCOTUS opinion was not related to the _Luke P_ case they referenced. Here’s a [link](https://scholar.google.com/scholar_case?case=6366212544924549262&q=540+F.3d+1143&hl=en&as_sdt=4,106,120) to the _Luke P_ decision which Gorsuch wrote. The key phrase from the Luke P decision Sen Durbin took exception to was > [@](#): > > … > From this direction, we have concluded that the educational benefit mandated by IDEA must merely be “more than de minimis.” [Urban ex rel. Urban v. Jefferson County Sch. Dist. R-1, 89 F.3d 720, 727 (10th Cir.1996)](https://scholar.google.com/scholar_case?case=11451566206855648607&q=540+F.3d+1143&hl=en&as_sdt=4,106,120). > … So the precedent Gorsuch referred to came from the \*Urban \*case, a decision written by TACHA from a case heard by a panel including McKAY, and JONES, Circuit Judges. Gorsuch did not make the precedent in _Urban_. He did apply that precedent in _Luke P_. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [March 22, 2017, 10:36pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/153 "2017-03-22T22:36:03Z")
> [@Iggy](#): > > I would say the matter has been imprecisely reported by Daily Kos. And it seems **Rick Kitchen** quoted the Daily Kos headline that had a detail wrong. So, what you’ve concluded is that a panel of the Tenth Circuit (that did not include Gorsuch) interpreted the statute in a particular way. Several years later, Gorsuch wrote an opinion that applied Tenth Circuit law. Several years after that, a case (which also did not involve Gorsuch but which also applied the same Tenth Circuit law) was reversed by the Supreme Court. And describing that as “unanimously overturn[ing] a Gorsuch ruling” was “imprecise”? ---
**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 22, 2017, 10:37pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/154 "2017-03-22T22:37:39Z")
I would say imprecise and lacking context. ---
**Author:** ![drad\_dog](https://avatars.discourse-cdn.com/v4/letter/d/aeb1de/32.png) [@drad\_dog](https://boards.straightdope.com/u/drad_dog)\ **Post date:** [March 22, 2017, 10:37pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/155 "2017-03-22T22:37:44Z")
Stealing a base implies playing by the rules. Getting an oscar implies playing by the rules. This was not playing by the rules, in an adversarial game. If it was not illegal that doesn’t change that it was stolen from the injured party. It’s not a “wish.” If that was stolen and the premise behind voting for trump was “Because the Supreme court!!” you can’t separate the theft from the election which was very close. The motives of McConnell et al are against the interests of the electorate. Any of a number of pivots may turn such an election. I link the two things because a lot of people said, and I actually heard people use, the rationale of “The Supreme Court!” for their trump vote. It may be only remediable through politics, and good luck with that later on. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [March 22, 2017, 10:38pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/156 "2017-03-22T22:38:07Z")
> [@Bricker](#): > > Correct. I don’t agree that there was any major break with prior accepted practice, considering the Bork precedent. At best, the refusal to even hold a hearing, as opposed to holding a meaningless hearing with a foreordained result, is something I argue is relatively trivial. I certainly don’t accept the notion that this constitutes a “stolen,” seat, unless we’re also calling Bork’s seat stolen. I don’t agree, once again that it is the same thing at all. In Bork’s case, you have senators voting down a candidate for political reasons, but those reasons were related to the candidate, not the nominating president. The democrats just really didn’t like the guy, for personal, political and ideological reasons, and so voted against him, and defeated his nomination. Advise and Consent accomplished. The next SC that Reagan put up did get confirmed. Also the fact that there was no hearing or vote on Garland is significant as well. It is entirely possible that, if a vote had been held, a few republicans would have crossed the line and voted for him. You could argue that it is unlikely, but we will never know, because Mcconnell didn’t want to risk finding out, so refused to hold a vote, or even a hearing. The fact that Bork got a vote and Garland did not does make them very significantly different in my opinion. Another difference here, of course, is that had Obama withdrawn garland, or garland had been defeated, he could have put up a different SC nomination, and had republicans followed the precedent that you are invoking, they would have confirmed him. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 22, 2017, 10:42pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/157 "2017-03-22T22:42:01Z")
> [@Miller](#): > > Well, you said that his seat was “stolen” in the same way that Garland’s seat was stolen, so I assumed that meant that the Democrats prevented Reagan from filling the seat at all until they got their own guy in the White House. Not that Reagan simply didn’t get his first pick for the role. Reagan didn’t get his first pick for the role. Instead he had to settle for quasi-liberal Anthony Kennedy. > [@](#): > > So, remind me again how they’re effectively the same thing? Because those are actually two very different situations. Not in any way that matters, in my opinion. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 22, 2017, 10:44pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/158 "2017-03-22T22:44:33Z")
> [@k9bfriender](#): > > The next SC that Reagan put up did get confirmed. No, the third guy did. The second guy was Douglas Ginsburg. > [@](#): > > Also the fact that there was no hearing or vote on Garland is significant as well. It is entirely possible that, if a vote had been held, a few republicans would have crossed the line and voted for him. You could argue that it is unlikely, but we will never know, because Mcconnell didn’t want to risk finding out, so refused to hold a vote, or even a hearing. The fact that Bork got a vote and Garland did not does make them very significantly different in my opinion. I agree it’s a difference, but not (in MY opinion) a significant one. > [@](#): > > Another difference here, of course, is that had Obama withdrawn garland, or garland had been defeated, he could have put up a different SC nomination, and had republicans followed the precedent that you are invoking, they would have confirmed him. Sure. Why didn’t he? You could argue that it is unlikely, but we will never know, because Obama didn’t want to risk finding out. 🙂 ---
**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 22, 2017, 10:47pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/159 "2017-03-22T22:47:06Z")
I see no reason to believe that the new precedent won’t be that SCOTUS vacancies won’t get filled unless the Senate and WH happen to be the same party. Neither party has any incentive whatsoever to not block the other party’s SCOTUS nominees, considering that it seems to have no political cost to do so. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [March 22, 2017, 10:48pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/160 "2017-03-22T22:48:05Z")
> [@Bricker](#): > > Reagan didn’t get his first pick for the role. Instead he had to settle for quasi-liberal Anthony Kennedy. > > Not in any way that matters, in my opinion. Reagan got to fill the vacancy on the Supreme Court left by Lewis Powell. Yes or no? Obama got to fill the vacancy on the Supreme Court left by Antonin Scalia. Yes or no? [Previous page](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653.md?page=7) [Next page](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653.md?page=9)