People For the American Way

National Review’s “Feeble” Attempt to Defend Gorsuch

News and Analysis

I consider it a badge of honor to have been singled out by Ed Whelan of the National Review Online because of a short piece I drafted for PFAW concerning Judge Neil Gorsuch’s troubling record, particularly since it took him almost four pages to attack what I wrote in one paragraph. A closer look at the National Review’s claims, however, shows that it was their attack that was “feeble,” in their words, and that Judge Gorsuch’s record makes clear that he would be a “dangerous” addition to the Supreme Court who would “threaten all our rights.”

First, NRO attacks our statement that Judge Gorsuch has “consistently ruled against workers and in favor of big corporations.” Its analysis of the two examples, however, leaves out some very important details. In Compass Environmental, Inc. v. Occupational Safety& Health Review Commission, Gorsuch dissented from a decision to affirm a Department of Labor fine against a company that failed to properly train a worker, resulting in his death by electrocution. NRO claims Gorsuch was right because there was no evidence to show that industry standards would have required more training, as the Administrative Law Judge (ALJ) in the case found. But NRO neglects the convincing response to those arguments by the panel majority, which included another judge nominated by President Bush.  The ALJ’s decision was reversed by the Review Commission, which found “clear evidence” that the majority concluded was demonstrably sufficient. In particular, the company’s own job hazard analysis found “fatal danger” from the high-voltage power lines involved, and recommended training for employees. That training was given to some employees, but the employee who was killed did not get it because he did not start work until after the training had occurred. As a result of that negligence, the danger truly did become fatal, and the fine against the company was clearly justified. Gorsuch’s pro-business dissent was extremely troubling.

NRO defends Gorsuch’s decision in Weeks v. Kansas because it was in accord with previous Circuit precedent to decide that an in-house lawyer could not bring a Title VII retaliation claim. But NRO neglects to point out that Gorsuch himself acknowledged in his opinion that the previous precedent may have been “superseded” by a later contrary Supreme Court decision, but did not consider the issue because the employee did not raise it in her briefs. Every judge knows (or should know) that they have a duty to consider all relevant court decisions in deciding a case, particularly Supreme Court precedent, regardless of whether the advocates have found it. Gorsuch’s failure to do that in Weeks is disturbing.

NRO then cites two cases as examples of Gorsuch decisions favoring employees, but manages to get even one of those descriptions wrong. NRO claims that in Strickland v. United Parcel Service , Gorsuch “ruled for workers” in “reinstating [a] Family and Medical Leave Act retaliation claim and  Title VII discrimination claim.” In fact, although Gorsuch agreed with the FMLA ruling, he dissented on the discrimination claim and argued that the dismissal of that claim should be affirmed. The majority was critical of Gorsuch’s argument, noting that he “fail[ed] to acknowledge” substantial evidence that the worker was treated differently because of her gender. Although NRO did find one case where Gorsuch ruled in favor of an employee in a pregnancy discrimination claim (against a city, not a corporation), there are more that demonstrate his pattern of ruling against employees and for corporations.

Second, NRO complains about our statement that Gorsuch has “harmed reproductive rights” through his opinions in the Hobby Lobby and Little Sisters cases. NRO doesn’t disagree that particularly the ruling in Hobby Lobby harmed reproductive rights by allowing for-profit businesses to refuse access to birth control coverage for religious reasons; they instead argue that the Supreme Court affirmed the ruling based on its interpretation of the Religious Freedom Restoration Act (RFRA). In fact, that’s exactly the point. Hobby Lobby was a 5-4 decision in which Justice Ginsburg’s vigorous dissent showed that the narrow Court majority seriously misinterpreted RFRA and harmed women’s reproductive rights by denying ” legions of women who do not hold their employers’ beliefs access to contraceptive coverage.” Right now, the Court is divided 4-4 on these issues as shown by its decision to send the Little Sisters case to the lower courts to try to achieve resolution.  There is no doubt that Gorsuch would tip the balance on the Court and extend Hobby Lobby even further with respect to nonprofits; in fact, the Tenth Circuit ruled against the Little Sisters claims, but Gorsuch joined a dissent from a decision not to rehear the case.

Third, NRO argues that Gorsuch’s dissent from a request for rehearing was correct in Planned Parenthood Ass’n. of Utah vs Herbert,  where the panel decision had issued a preliminary injunction against Utah’s governor for unilaterally cutting off Planned Parenthood (PP) funding because of retaliation against PP in connection with arguments that in other jurisdictions, videos that turned out to be misleading had shown PP employees negotiating to sell fetal tissue. NRO claims Gorsuch’s dissent showed that the panel had improperly reversed a factual finding by the lower court. But NRO again ignores crucial aspects of the case. First, one judge in the majority that disagreed with Gorsuch  pointed out that none of the parties asked for rehearing within the time permitted, and there was “no justification” for polling the court on that question at all (apparently an unidentified judge, quite possibly Gorsuch or another judge who joined his dissent, had requested the judges be polled.)  In fact, the judge who dissented from the panel decision in the case did not even support rehearing. In addition, one of the judges in the majority explained that Gorsuch’s dissent “mischaracterizes” the record, that in fact there never was a factual finding by the lower court, and that there was clear support for the panel’s decision based on its legal analysis and admissions by the governor himself. This dissent not only shows Gorsuch’s lack of regard for reproductive rights, but also his tendency to defer to executive authority when individual rights are concerned, a dangerous tendency under President Trump.

Fourth, NRO disagrees with our criticism of Gorsuch’s efforts while a lawyer to restrict class actions for securities fraud, an important legal tool for consumers, by pointing out that the Supreme Court ruled in favor of the corporation that Gorsuch’s friend of the court brief supported in the Dura Pharmaceuticals v. Broudo case. That statement is correct, but again misses the point. The Court’s ruling in the case was narrow, holding simply that an inflated purchase price for securities will not by itself demonstrate the necessary economic loss to prove securities fraud. But Gorsuch wanted to go much further. In papers he wrote on his own behalf he urged courts and legislators to make it much harder to bring such class actions at all, complaining about the enormous cost to businesses of settling such cases and claiming they are just a “free ride to fast riches” for those who bring such suits. The Supreme Court accepted no such arguments in its narrow ruling. In fact, the Court went out of its way to emphasize that court rules in such cases should not be interpreted to “impose a great burden on the plaintiff” in making securities fraud claims. Gorsuch was clearly trying to help corporations at the expense of consumers by his efforts, which is all too consistent with his record as a judge.

Fifth, NRO complains about our criticism of Judge Gorsuch’s strong opposition to the Chevron doctrine, under which courts defer to agency interpretations of statutes they are charged with enforcing. NRO neglects the fact that this view goes even further than Justice Scalia, and even claims (incorrectly) that we ignored the fact that Scalia was an advocate of Chevron. NRO argues that Chevron is a neutral principle, and that everything depends on who is writing agency regulations. But as we pointed out in a recent op-ed on this subject, it has been pro-business advocates like House Republicans and Gorsuch who have been the most severe critics of Chevron. Regardless of what President Trump may do in the short run, as Rep. John Conyers has explained, over the long run Chevron is crucial to the “ability of federal regulatory agencies to protect public health and safety.”  This happens because Chevron helps uphold rules that impose requirements on corporations to protect health and safety, as in the case where rules by the EPA required action by coal companies that helped protect approximately 23,000 children under the age of six from hazards caused by lead-based paint. As with so many of his other actions, Gorsuch’s opposition to Chevron helps big business and harms ordinary Americans.

Our one paragraph about Gorsuch that NRO criticized was no “bill of particulars;” PFAW and many others have spelled out in greater detail the troubling parts of Judge Gorsuch’s record. But even that one paragraph helps demonstrate that Judge Neil Gorsuch is clearly out of the mainstream, further to the right in some ways than Justice Scalia, and should not be confirmed for the Supreme Court.