Franken, Gorsuch and the Ghost of Scalia


Senator Al Franken and Judge Neil Gorsuch


Once  upon a time there was a trucker named Alphonse Maddin, who was fired for making a commonsense decision to save his own life — and to protect others as well.

The facts 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 (his employer) 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.’”

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.

“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 calls . . . and wakes him up, and his cousin says that he is slurring his speech.”

Maddin is in the initial stages of hypothermia.  He calls them back again and his supervisor says, ‘Wait. You gotta wait.’ So he has a couple choices here, wait or take the trailer out, with frozen brakes, onto the interstate.

Maddin, facing either continuing to sit until he froze to death or taking a massive trailer out onto an icy interstate with no brakes finally acted:  he disconnected the trailer from the cab and drove the cab and himself to safety.  He returned as soon as he was able to safeguard and reconnect the trailer to continue on his journey.

He was terminated for abandoning the trailer during the storm.

He got his job back in court   One judge alone among all the judges who ruled on the case, TransAm Trucking v. Dept. of Labor,  thought that was perfectly fine to fire the near frozen trucker.

Neil Gorsuch, our Trump nominee to the Supreme Court to fill the vacancy resulting from the death of Antonim Scalia 13 months ago.

Day before yesterday during a Senate Committee meeting with Gorsuch, Senator Al Franken of Minnesota, former comedian and host of Saturday Night Live pummeled Gorsuch for his reasoning and his vote during the case, quoting from Gorsuch’s dissenting opinion.

“And what would you have done?” Franken asked. “I’m asking you a question. Please answer the question,”   “Senator, I don’t know,” the finest legal mind in all of conservative America answered. “I wasn’t in the man’s shoes, but I understand why . . . ”

“You don’t know what you would’ve done,” Franken summed up for him. “OK, I’ll tell you what I would’ve done. I would’ve done exactly what he did. And I think everybody here would’ve done exactly what he did. And I think that’s an easy answer. Frankly, I don’t know why you had difficulty answering that.”

“From there, Franken turned to the dissent Gorsuch wrote. As Franken described it, the issue came down to a “plain meaning” rule: “When the plain meaning of a statute is clear on its face, when its meaning is obvious, courts have no business looking beyond the meaning to the statute’s purpose.” That’s what Gorsuch relied on in his ruling.”

“But the plain meaning rule has an exception,” Franken continued. “When using the plain meaning rule would create an absurd result, courts should depart from the plain meaning,” he said. “It is absurd to say this company is within its rights to fire him because he made the choice of possibly dying from freezing to death or causing other people to die possibly by driving an unsafe vehicle. That’s absurd.”

Walking through the entire case and questioning Gorsuch’s judgement leads one to inevitably question his entire legal philosophy; indeed it leads to questioning the legal philosophy the right has spent decades in constructing.  If you think the law condemns Alphonse Maddin to death or dismissal, then the law is no place for you.

On every issue, from gender and racial equality, affirmative action, voting rights, abortion, gay rights, marriage equality, money in politics, the death penalty, the right to own guns, Bush v. Gore, Antonim Scalia, for all his brilliance and education, was on the wrong side.

His argument against abortion rights for example was essentially that it isn’t in the Constitution therefore if the nation wants abortion rights they should be legislated and not established by the Court’s “activism” in striking down state laws against abortion.  He refused to recognize that the Court has been striking down laws it considers unconstitutional since Justice John Marshall.  The Court didn’t make an abortion law; it struck down anti-abortion laws made by the states.

One could make the same argument against school segregation.

He raged when the Court struck down Texas’ sodomy laws ranting that it would lead to homosexual marriage – marriage equality.  And indeed it did to Scalia’s dismay.  Still, the sun rose over the Republic.

Scalia opined that it was ok for Oklahoma to execute someone who was 15 years old when the crime was committed, mocking the majority’s claims that a national consensus had emerged against the execution of those who killed while under age, and noted that less than half of the states that permitted the death penalty prohibited it for underage killers. He castigated the majority for including in their count states that had abolished the death penalty entirely.

That’s cold.

No one in the back alleys of our cities, in those mean little houses in the dismal corners of our great land, where that American dream has been long forgotten, where a rusty coal stove sits in the living room, daddy smells of gasoline, momma is unpredictable, and where there is not a single book, none of these human beings was helped by the god like presence of Antonim Scalia.  His passing might have brought about a heart felt  flood of grief and tears from the poor, the oppressed, the marginalized -but didn’t.  He never stood with them.  He stood always with power.There has always been a heartless cruelty behind the conservative “legal philosophy.”

Gorsuch’s opinions, like Scalia’s reek of “faux originalism” and a “historicizing glaze on personal values and policy preferences”.  His education and ‘brilliance” will benefit no one but himself.  Certainly not the common man.


About toritto

I was born during year four of the reign of Emperor Tiberius Claudius on the outskirts of the empire in Brooklyn. I married my high school sweetheart, the girl I took to the prom and we were together for forty years until her passing in 2004. We had four kids together and buried two together. I had a successful career in Corporate America (never got rich but made a living) and traveled the world. I am currently retired in the Tampa Bay metro area and live alone. One of my daughters is close by and one within a morning’s drive. They call their pops everyday. I try to write poetry (not very well), and about family. Occasionally I will try a historical piece relating to politics. :-)
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3 Responses to Franken, Gorsuch and the Ghost of Scalia

  1. beetleypete says:

    I don’t know anything about Scalia, and his actions were obviously not reported widely here. But he seems to have represented the worst sort of justice, and was no credit to the US legal system.
    Best wishes, Pete.

    Liked by 2 people

  2. jfwknifton says:

    Excellent post! I wonder if those right wingers would call themselves Christian?

    Liked by 1 person

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