Left-Wing Letter Against Gorsuch—Part 1

by Ed Whelan

The Leadership Conference on Civil and Human Rights and a collection of other left-wing self-styled “civil and human rights organizations” have sent the Senate their all-too-predictable letter opposing the confirmation of Supreme Court nominee Neil Gorsuch. Their letter is replete with boilerplate blather, but it woefully fails to support their claims.

The lefty groups (which I will refer to collectively as LCCHR) organize their claims about Judge Gorsuch’s record in ten sections. I will address each of these in turn. (I will pass over, at least for now, their last two sections, which complain about some things that happened at the Department of Justice while Gorsuch served in the Associate Attorney General’s office but which simply say that he “should be questioned” to see what role, if any, he had in such matters.)

“Discrimination Claims”: LCCHR claims that Gorsuch’s 2005 National Review article manifested a “hostility to the use of courts by discrimination victims to enforce their rights under the Constitution” (emphasis added). But Gorsuch showed no such hostility. On the contrary, he was simply endorsing the critique made by David von Drehle, a Washington Post columnist and “self-identified liberal,” that American liberals excessively rely on the courts to impose their social agenda. Gorsuch made clear that he was not applying that critique to the “constitutional lawsuits [that] have secured critical civil-rights victories, with the desegregation cases culminating in Brown v. Board of Education topping the list.” And, by its own terms, his critique plainly also did not apply to lawsuits to enforce established rights under the Constitution.

LCCHR cites two of Gorsuch’s opinions, but its accounts of both are grossly inadequate and misleading. In Strickland v. UPS, Gorsuch joined the parts of the panel opinion that held that the plaintiff was entitled to a new trial on her claim that she had been retaliated against for using her rights under the Family and Medical Leave Act. He dissented only from the panel’s ruling that she was also entitled to a new trial on her Title VII sex-discrimination claim, and he did so on the ground (not hinted at, much less disclosed, by LCCHR) that the record showed that the employer mistreated male employees “in very much the same manner” that he mistreated the plaintiff. In other words, the plaintiff offered no evidence that she was being discriminated against on the basis of sex.

The second opinion that LCCHR cites, Weeks v. Kansas, was a short unanimous opinion that involved a straightforward application of circuit precedent. The case did not involve sex discrimination but rather an employer’s alleged unlawful retaliation against an in-house lawyer for her advice concerning two other employees’ claims of unlawful discrimination. Under Tenth Circuit precedent, an in-house lawyer does not engage in “protected opposition to discrimination” when she merely provides legal advice to the employer. Gorsuch’s opinion affirmed the district-court ruling of Judge Carlos Murguia, a Clinton appointee.

“Workers’ Rights”: In Compass Environmental, Inc. v. Occupational Safety & Health Review Comm’n, Gorsuch dissented from a panel ruling upholding a fine imposed against a company for allegedly failing to adequately train a worker who was electrocuted. LCCHR claims that Gorsuch dissented “because he didn’t believe the employer was negligent” (as though he were making some sort of free-form assessment). But, as Gorsuch explains, he dissented on the very narrow ground that the Secretary of Labor failed to present any evidence to satisfy her burden, under Department regulations, of showing that industry norms would have required more training than the worker received. As he points out, the administrative-law judge in the matter “dismissed the citation against [the employer] for exactly this reason.”

LCCHR’s account of TransAm Trucking v. Administrative Review Board badly obscures the legal issue that was the basis for Gorsuch’s dissent. According to LCCHR, Gorsuch “said the [fired trucker] should have followed orders even at the risk of serious injury.” No. What Gorsuch said was that the trucker who “chose … to operate his vehicle in a manner he thought wise but his employer did not” (emphasis in original) could not claim the statutory whistleblower protection extended to those who refuse to operate a vehicle out of safety concerns. As he put it, the company’s decision to fire the trucker under the circumstances may not have been “a wise or kind one.” But “there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid.”

LCCHR doesn’t even bother to try to explain, much less intelligently criticize, Gorsuch’s dissent in NLRB v. Community Health Services. Gorsuch was not objecting to the employees’ eligibility for back pay where their hours had been unlawfully reduced. He was objecting, rather, to the NLRB’s adoption of a “new rule” governing the calculation of that back pay.

“Immigration”: In its discussion of the Tenth Circuit’s en banc ruling in 2007 in Zamora v. Elite Logistics, Inc., LCCHR again does a remarkable job of obscuring what the case was about. When Elite Logistics hired Ramon Zamora, he was a Mexican citizen and a lawful permanent resident of the United States. When Elite later discovered that he was using the same social security number that another employee was using, it gave him ten days to provide documents establishing that he had a right to work in the United States. When he failed to do so, Elite suspended him. When he later provided these documents, it reinstated him, but when he requested an apology, it fired him.

The Tenth Circuit divided evenly, seven to seven, on the question whether Elite was entitled to summary judgment on Zamora’s suspension claim; Gorsuch voted that it was. It ruled by a vote of nine to five, with Gorsuch in the majority, that Elite was entitled to summary judgment on Zamora’s firing claim.

The fact that Gorsuch was part of a seven-judge coalition on one question and a nine-judge coalition on the other defeats any claim that his positions in the case were somehow extreme. Moreover, LCCHR’s effort to draw broader lessons from this case about Gorsuch’s approach to immigration-law issues and “immigration enforcement strategies” mistakes the discrete legal issues that the case presented.

It’s also very odd that LCCHR doesn’t discuss, or even acknowledge, here Gorsuch’s notable rulings in favor of illegal aliens in Gutierrez-Brizuela v. Lynch and De Niz Robles v. Lynch. But I guess that those don’t fit the contrived narrative.

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