Al Franken’s grilling of Gorsuch exposes the heartless cruelty behind conservative legal philosophy – Salon

In a few short minutes of questioning Trump’s Supreme Court nominee Neil Gorsuch on Tuesday, Sen. Al Franken, D-Minn., exposed the utter absurdity of an elaborate legal fiction that conservatives have spent decades constructing. That fiction is meant to place them unreachably beyond any possible question, no matter how ludicrous, cruel or unjust their rulings might be. If the Democrats had any semblance of a coherent messaging apparatus, the Gorsuch nomination would be finished. But, of course, they don’t.

It happened so quickly, and Franken’s manner — as usual — was so understated, that it was easy to miss the significance of what happened. But the nation cannot afford to let that happen. The point Franken was making was far too critical to let it pass by unnoticed. In fact, it should be a rallying point to gather around, one that could reset the course of American jurisprudence along more sound and sober lines.

Franken’s questioning concerned the notorious “frozen trucker” case, TransAm Trucking v. Dept. of Labor. Other senators had mentioned it, but never quite in the way that Franken did. A trucker named Alphonse Maddin was fired for making a commonsense decision to save his own life — and to protect others as well. Gorsuch, alone among all the judges who ruled on the case, thought that was perfectly fine. Indeed, he felt it was the only legal conclusion he could possibly reach, a conclusion Franken called “absurd.”

A black-robed judge in the warm comfort of his chambers decides that a trucker should have meekly accepted freezing to death (alone in his truck, in midwinter, in the middle of the night), and there’s nothing anyone can do about it. That is conservative jurisprudence in a nutshell. It’s reason enough to not merely reject Neil Gorsuch but also spurn any judge who would justify himself and his rulings with similar rhetoric — like John Roberts before him — of simply, heartlessly interpreting the law the only way he could, by “calling balls and strikes.”

The acts of the matter were perfectly straightforward. As summarized by the court, “In January 2009, Maddin was transporting cargo through Illinois when the brakes on his trailer froze because of subzero temperatures. After reporting the problem to TransAm and waiting several hours for a repair truck to arrive, Maddin unhitched his truck from the trailer and drove away, leaving the trailer unattended. He was terminated for abandoning the trailer.”

Maddin successfully sued for reinstatement, the court explained, under a provision that “makes it unlawful for an employer to discharge 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.’”

Throughout the proceedings, Gorsuch was the only judge at any level who thought Maddin should have risked death or been fired. That’s what Franken honed in on, dramatizing Maddin’s plight, going through it step by step. After Maddin made a stop at about 11 p.m. on the night in question, he noticed his brakes had frozen. He called for repairs. Franken took it from there.

The dispatcher says wait, hang on there. OK, couple hours goes by, the heater is not working in his cab, it’s 14 below zero, . . . 14 below zero. He calls in and says, ‘My feet, I can’t feel my feet. I can’t feel my feet, my torso, I’m beginning not to be able to feel my torso,’ and they say, ‘Hang on, hang on, wait for us.’ OK, now he actually falls asleep, and at 1:18 a.m., his cousin I think calls . . . and wakes him up, and his cousin says that he is slurring his speech. . . . Now, the Mayo Clinic in Minnesota says that is hypothermia, and if you fall asleep in 14-below-zero weather you can freeze to death. You can die.


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