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Court nominee Gorsuch’s record on worker rights deeply troubling

The following is from the AFL-CIO:

(Feb. 1, 2017) — There is much at stake for working families in filling this Supreme Court vacancy. The Court rules on whether we are paid properly for the time we work; we have jobs to return to after caring for a sick family member; we are safe on the job from harmful substances; and we are protected from illegal firings when we choose to form unions.

Judge Neil Gorsuch’s record is deeply troubling in its treatment of workers’ rights and protections. The AFL-CIO calls upon the Senate to review thoroughly and independently Judge Gorsuch’s record for this lifetime appointment to ensure that he will uphold the core constitutional values of liberty, equality and justice for all, not just the wealthy and powerful.

Background Information

Neil Gorsuch was nominated to serve on the U.S. Court of Appeals for the Tenth Circuit by President George W. Bush on May 10, 2006. That court’s jurisdiction includes Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah, plus parts of the Yellowstone National Park extending into Montana and Idaho.

Gorsuch was born in Denver, Colorado and he is 49 years old. He graduated from Columbia University and Harvard Law School, and clerked for U.S. Supreme Court Justices Byron White and Anthony Kennedy. After clerking, he earned a Ph.D. in Philosophy from Oxford University in England. Gorsuch practiced law as a government lawyer at the U.S. Department of Justice (Principal Deputy to the Associate Attorney General) and as a partner at a law firm (Kellogg, Huber, Hansen, Todd, Evans & Figel).

Gorsuch has been described as a “predictably socially conservative judge who tends to favor state power over federal power.” As one legal commentator concluded, “Gorsuch is . . . a very natural choice… as a replacement for Scalia — someone who would espouse similar principles, stand firm on similar doctrinal commitments, reach similar outcomes, and even fill a similar role as one of the court’s most articulate defenders of conservative judicial theory.”

Judge Gorsuch has described the job of judge as to “look[] backward[s]” for the meaning of the law. He has also articulated an extreme, controversial position to overturn long established Supreme Court precedent: He would no longer have courts defer to the expertise of executive agencies, such as the National Labor Relations Board and the Equal Employment Opportunity Commission.

Here are examples of some troubling labor and employment decisions of Judge Gorsuch:

Health and Safety: An excavator operator died on-the-job after being electrocuted by an overhead power line at a surface mine site. The Occupational Safety and Health Review Commission investigated, finding a serious violation of safety regulations and imposed on the employer a $5,550 fine, which the employer appealed. While the majority of the court upheld the Commission’s findings against the employer, Judge Gorsuch dissented, contending that this case was yet another example of administrative agencies wielding “remarkable powers” and “penalizing” the company even when no evidence existed. Compass Environmental, Inc. v. OSHRC, 663 F.3d 1164 (10th Cir. 2011) (Gorsuch, J., dissenting)

National Labor Relations Act: The majority deferred to the expertise of the National Labor Relations Board (NLRB), ruling that workers’ interim earnings should be disregarded when calculating back pay awards where a hospital unlawfully reduced work hours. The Board reasoned that, on balance, workers who take on additional outside jobs should retain the benefit of their “extra effort,” not “recalcitrant” employers. Judge Gorsuch disagreed and dissented, observing that the NLRB’s “statutory charge isn’t to promote full employment . . . It’s not some sort of reincarnation of the Works Progress Administration,” criticizing the Board’s “administrative ipse dixit.” NLRB v. Community Health Services, Inc.,.812 F.3d 768 (10th Cir. 2016) (Gorsuch, J., dissenting)

National Labor Relations Act: Judge Gorsuch, siding with the employer, upheld the NLRB’s refusal to find a lockout unlawful when the employer threatened to hire permanent replacements, but quickly retreated from that threat. While in this instance Judge Gorsuch deferred to the NLRB, he made abundantly clear that “we don’t mean to suggest we endorse every jot and tittle in the administrative precedents we’ve discussed.” Teamsters Local Union, 455 v. NLRB, 765 F.3d 1198 (10th Cir. 2014)

Sex Discrimination: The court majority found that a woman driver fired by her company had sufficient evidence to challenge that firing based on sex discrimination. The trucker’s evidence included co-workers who testified that she was treated differently than her male co-workers, and that only she regularly had to attend individual meetings and counseling sessions on sales performance. Judge Gorsuch, however, stridently dissented, finding such evidence “absent.” Strickland v. UPS, 555 F.3d 1224 (10th Cir. 2009) (Gorsuch, J., dissenting in part, and concurring in part)

Whistleblower Protection: The court majority deferred to the U.S. Department of Labor, agreeing that under the Surface Transportation Assistance Act a shipping company improperly fired a trucker when, out of safety concerns, he refused to drag a trailer with frozen brakes. Judge Gorsuch dissented, taking issue with the Department’s findings that the statutory phrase “refuse to operate” should be interpreted within its statutory context of promoting health and safety. Judge Gorsuch instead looked to a dictionary for the plain meaning of the phrase and queried: “What, under the sun, at least at some level of generality, doesn’t relate to ‘health and safety’?” TransAm Trucking, Inc. v. Administrative Review Board, U.S. Department of Labor, 833 F.3d 1206 (10th Cir. 2016) (Gorsuch, J., dissenting) (emphasis in original)

Whistleblower Protection: Judge Gorsuch ruled for the insurance company, rejecting state law claims for retaliation by a fired sales agent who sought protection as a whistleblower; the employer had fired the sales agent after he had complained to Kansas’ state insurance department that his employer was discriminating against Hispanic insureds, but the court found timing and evidence problematic (e.g., he was fired seven, not six, weeks, after complaining of the employer’s discriminatory behavior). Bergersen v. Shelter Mutual Insurance Co., 229 Fed. Appx. 750 (10th Cir. 2007)

Before being appointed to the bench, Gorsuch spent most of his career representing corporate clients. His record as a lawyer in private practice does not lessen our concerns about his alignment with corporate interests:

► In a 2005 paper, Gorsuch argued that class actions challenging securities fraud should be made more difficult for investors, since protecting corporations from the risk of litigation far outbalanced the concerns of investors who may have been swindled. Settlements in Securities Fraud Class Actions: Improving Investor Protection, Washington Legal Foundation (2005).

► In private practice, Gorsuch filed an amicus brief, again opposing class actions in securities litigation as burdensome on business, on behalf of the U.S. Chamber of Commerce, an organization that represents the interests of big business and seeks to undermine worker protections. Brief of Amicus Curiae for the United States Chamber of Commerce, Dura Pharm., Inc. v. Broudo, 544 U.S. 336 (2005). In a 2005 article discussing the Broudo case, Gorsuch attacked plaintiffs’ lawyers who represented investors in securities class actions as seeking “free ride[s] to fast riches.” No Loss, No Gain, Legal Times (Jan. 31, 2005).

► In a 2005 opinion-editorial, Gorsuch condemned “American liberals” for an “overweening addiction” to constitutional litigation. While he concluded that liberals should “kick” that litigation addiction and try to “win elections rather than lawsuits,” he directed criticism only at “the Left,” not the Right and conservative legal advocacy groups. Neil Gorsuch, Liberals N’ Lawsuits, National Review Online (Feb. 7, 2005).

► In today’s NY Times — Neil Gorsuch, the nominee for a stolen seat (editorial) — It’s been almost a year since Senate Republicans took an empty Supreme Court seat hostage, discarding a constitutional duty that both parties have honored throughout American history and hobbling an entire branch of government for partisan gain. President Trump had a great opportunity to repair some of that damage by nominating a moderate candidate for the vacancy, which was created when Justice Antonin Scalia died last February. Instead, he chose Neil Gorsuch. If confirmed, that spells big trouble for public-sector labor unions, environmental regulations and women’s access to contraception.

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