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Neil Gorsuch Will Find a Way to Rule With the Corporations

Friday, March 31, 2017 By Janine Jackson, FAIR | Interview
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Judge Neil Gorsuch, Donald Trump's nominee for the Supreme Court, while testifying on the third day of his confirmation hearing before the Senate Judiciary Committee on Capitol Hill, in Washington, DC, March 22, 2017. (Photo: Eric Thayer / The New York Times) Judge Neil Gorsuch, Donald Trump's nominee for the Supreme Court, while testifying on the third day of his confirmation hearing before the Senate Judiciary Committee on Capitol Hill, in Washington, DC, March 22, 2017. (Photo: Eric Thayer / The New York Times)

Janine Jackson: The Washington Post ran an op-ed last month by a Princeton professor headlined "Ignore the Attacks on Neil Gorsuch. He's an Intellectual Giant -- and a Good Man." But at that point, especially, you had to ask -- what attacks?

Well, it's somewhat different now, with an announcement on March 28 that Democrats may filibuster the nomination. But for media, it's all over. The New York Times says Gorsuch will probably be confirmed, the Chicago Tribune said he's earned it, USA Today says he "sailed through."

But has the public learned enough about the man who could help shape laws that affect us all? Dan Goldberg is legal director at the group Alliance for Justice; he joins us now by phone from Washington, DC. Welcome to CounterSpin, Dan Goldberg.

Dan Golberg: Thank you very much for having me.

Well, a number of people were put off by his coyness and his dancing around questions -- and they were off-putting. But Alliance for Justice, along with other groups, have been producing bulletins on Gorsuch's record, outlining a number of serious concerns about the kinds of justice he would be, beyond that smarminess. And there are quite a lot of those points of concern. You can start anywhere; what are some of the things that trouble you most about his judicial record?

You rightly pointed out how little information Judge Gorsuch was willing to give the American people about his record, about where he stands on key issues affecting so many Americans, about what his constitutional values are, and whether he'll protect critical legal protections. He went out of his way over two days of questioning not to answer key questions from members of the Senate.

And, to be honest, what's troubling about that is not just that he wouldn't answer questions, that he wouldn't be forthcoming, but that there was a reason he didn't want to do so, and that's because he wanted to hide his record from the American people. I think we're confident that once the American people know who Judge Gorsuch is, they'll make clear to their representatives that this is not an individual they want to have a lifetime seat on the Supreme Court, impacting their lives and their children's lives for generations.

What is clear with our review of the record, and what has come across throughout the hearing, through some of the key questions that, in particular, Democratic senators asked, was this is an individual who wants to, and has, undermined legal protections that workers rely on, whether that's to ensure safe workplaces or fair wages. He's undermined protections that women rely on, whether that's for equal opportunity in the workforce, equal education, or making sure that they have access to quality healthcare. He's undermined critical protections for the rights of Americans with disabilities. And the list goes on and on.

And I think you started with a quote from the Princeton professor. This isn't about his intellect or whether he's a good man or not. I, quite frankly, believe those are probably adjectives that describe him. But the question is, if he gets to the Supreme Court, whose side is he going to be on? Is he going to be on the side of the law, the Constitution, and upholding rights and legal protections for everyday Americans? Or -- and this is quite abundantly clear, from his ten years on the Court of Appeals -- is he somebody who's going to side with corporations, with the powerful, and not be an independent check on the excesses of the Trump administration?

He went out of his way to hide his record, but I think if you look at the cases he's decided and what he has said, this is an extreme nominee who will cause -- it's hard to overstate the damage he will do to our country and, more importantly, to everyday Americans.

He seemed almost offended by certain questions, and claimed he doesn't care who's rich or poor, that there's no such thing as a Republican justice or a Democratic justice. That seems specious, because when you look, then, at the actual record -- so maybe let's look at some actual examples. One thing that folks are really concerned about is that Gorsuch seems to believe corporations are people.

That's 100 percent correct. He was on the original Hobby Lobby case. This is the case regarding whether for-profit corporations have a right, under healthcare law, to deny critical reproductive healthcare and access to contraceptives to their women employees. It was a remarkable decision that really was counter to 200 years of legal tradition and analysis. I think one of the senators pointed out to Neil Gorsuch that he calls himself an originalist, but nowhere in The Federalist Papers does it say that the founders intended for-profit corporations to enjoy the same rights as the American people.

And what's particularly troubling in that is not just that he held that for-profit corporations are people with legal rights, but that those rights trump the rights of everyday Americans. Nowhere in his decision in Hobby Lobby does he talk about even the need to balance the interests of the women who rely on employer-sponsored healthcare. It was a callous decision, it was not legally right, and it just demonstrates how results-oriented he is.

Let me give you one more example in that context, and that's the case of Planned Parenthood v. Utah. This was a case where the Republican governor of Utah decided, after the false videos came out regarding Planned Parenthood, to unilaterally defund Planned Parenthood in Utah, hurting thousands of women who rely on the organization for critical access to healthcare. Planned Parenthood sued, and judges on the Tenth Circuit Court of Appeals rightly decided that they were entitled to a preliminary injunction blocking the governor's unilateral action.

Neil Gorsuch, on his own, without the state of Utah even appealing, sought en banc review, full court review, of that Tenth Circuit panel decision. He lost. The majority of judges on the Tenth Circuit rightly recognized the preliminary injunction was proper. Another judge on the panel, characterizing Judge Gorsuch's opinion in that case, pointed out that he misrepresented the facts and the law in that case numerous times in his opinion. Again, just a results-oriented approach designed to shield the unilateral actions of a Republican governor to take away critical healthcare for women.

I did want to ask you about the question of people with disabilities, because that's one where we've seen something very interesting this week. Gorsuch wrote, of course, the opinion for this 2008 decision that rejected the claim that a Colorado school district wasn't doing enough to educate an autistic student. Now the Supreme Court, even during his hearing, has come out and said that that is not correct, and in fact has kind of smacked at the Tenth Circuit for that decision. Can you tell us what Gorsuch's role was there and what it means?

Well, they had a really awful set of facts. The case was involving a child by the name of Luke P, and if you have a chance, his father testified earlier today before the Senate Judiciary Committee, and could not have been more powerful in demonstrating the steps that Neil Gorsuch took to undermine the education opportunities for his child. Luke P had autism; it was undisputed that he was not getting the education he needed, and was entitled under the IDEA to a free and appropriate meaningful education. The facts demonstrated that he was only meeting 25 percent of his goals, his educational goals, in the school, and he rightly exercised his rights under an act of Congress, the IDEA, to demand that the school district do more to properly educate his child.

And Neil Gorsuch, in his opinion, rejected Luke P's claim, and in doing so the standard he created, which appears nowhere in law, nowhere in the statute, nowhere in prior Supreme Court precedent, nowhere in prior Tenth Circuit precedent, is that Luke P was only entitled to "merely de minimis" education. Taking it out of the disability context, I think any parent would be outraged if they are told that a school is only teaching their child 25 percent of his goals, and that that child is only entitled to merely more than a de minimis education. That is not the equal opportunity that Congress set forth in the IDEA. It demonstrated Neil Gorsuch's callousness to the situation Luke P found himself in. It demonstrated Neil Gorsuch's contempt for the efforts of Congress to ensure equal opportunity for all persons, including those with disability.

And as you alluded to, in another case involving the Tenth Circuit, which had adopted Neil Gorsuch's standard, the Supreme Court just yesterday unanimously, every single judge on the Supreme Court, Democratic-appointed and Republican-appointed alike, eviscerated Neil Gorsuch's standard, and made clear that that was not the intent of Congress, and a merely de minimis education is the same as no education at all. I've never seen anything like it, where the Supreme Court unanimously demonstrates, on the same day the nominee is testifying, how unqualified this nominee is to be on the Supreme Court.

And yet I look at the news and I see that the media think he sailed through and that he's earned the position and, you know, let's just move it along. I don't understand that disconnect, I guess.

Well, I think one thing to keep in mind is, just today, Senator Schumer had a terrific statement where he laid out his opposition to Neil Gorsuch, and made clear that the Democrats are going to follow the practice that has been followed in the past, that this is a lifetime seat on the Supreme Court; for an individual to be confirmed, they should be somebody within the mainstream who enjoys broad bipartisan support.

Yes. And there was another case I wanted to ask you about that also involved disability. Can you tell us about that?

That's the case of Grace Hwang v. Kansas State University. This is a woman who had been a professor for 15 years, and she came down with breast cancer and then leukemia. And she took six months of leave, as authorized by the university, so she could have a bone marrow transplant. And as she was coming back to school to teach, an H1N1 virus, there was an outbreak throughout the state of Kansas, including on the Kansas State University. And her doctor told her, your immune system is shot because of the cancer and treatment, and if you return to campus you could potentially die.

So she did what she was authorized to do under the Rehabilitation Act, which is the same as the Americans with Disabilities Act, but for public entities: She asked her employer for an additional several weeks of leave. She even offered to work from home, to teach classes over the internet, to work with substitute teachers. And her employer said no, that she was not entitled to any additional leave, and she lost her job. She filed suit under the Rehabilitation Act, which says that an employee, somebody with a disability -- in this case cancer -- was entitled to a reasonable accommodation unless there's an undue burden on the employer.

Neil Gorsuch ruled that the company was justified in not giving her additional leave. He said that six months leave that she was entitled to was, quote unquote, "sufficient" for her. Then he said that it was irrelevant that Kansas State University had given additional leave to other professors so they could take a sabbatical; she was still not entitled to this leave. And, finally, what he said was that the Rehabilitation Act is not meant to be a "safety net for those who cannot work," just demonstrating the callousness of who Neil Gorsuch is, as if he was comparing a woman just trying to survive with, in his mind, somebody laying on the couch eating Cheetos, trying to game the system so they could watch soap operas instead of working. And, again, what's critical is Congress put in place a statute to protect people like Grace Hwang, and Neil Gorsuch substituted his own views as to what he thought the burden on an employer was, to ensure that Grace Hwang did not get the justice she deserved.

It just adds, doesn't it, to the disheartening…

Her family wrote an incredibly moving op-ed that was printed in the San Francisco Chronicle. There is countless case law throughout the country that makes clear that whether something is a reasonable accommodation or an undue burden is a very fact-intensive, case-by-case determination. And what he said is, instead of allowing a jury to make this determination, as the law generally recognizes, he on his own decided six months leave was sufficient, period -- again, just demonstrating the steps he'll take to deny individuals critical legal protections.

Yeah, and putting the lie to this kind of performance that he gave about, you know, I just follow the statute, I don't -- I'm not an activist. Yeah.

Exactly. Quite frankly, he came about as close as he could get to using the balls and strikes analogy, like Chief Justice Roberts when he testified in his confirmation hearing. And what comes across in all of these cases -- the freezing truck driver, Grace Hwang, Luke P, and the list goes on and on -- the reality is that when it comes to choosing between acts of Congress, legal protections and everyday Americans, or corporations, he's going to find a way to rule with the corporations almost every single time.

Well, we don't know exactly what's going to happen, we're right in the midst of it right now, so we'll keep on top of it. But thank you very, very much, Dan Goldberg of the Alliance for Justice, for speaking with us this week on CounterSpin. And folks can find your work on Gorsuch and other things on line at afj.org. Thank you so much, Dan Goldberg.

Thank you for having me. Really appreciate it.

This piece was reprinted by Truthout with permission or license. It may not be reproduced in any form without permission or license from the source.

Janine Jackson

Janine Jackson is FAIR's program director and and producer/host of FAIR's syndicated radio show "CounterSpin." She contributes frequently to FAIR's newsletter Extra!, and co-edited The FAIR Reader: An Extra! Review of Press and Politics in the '90s (Westview Press). She has appeared on ABC's "Nightline" and "CNN Headline News," among other outlets, and has testified to the Senate Communications Subcommittee on budget reauthorization for the Corporation for Public Broadcasting. Her articles have appeared in various publications, including In These Times and the UAW's Solidarity, and in books including Civil Rights Since 1787 (New York University Press) and Stop the Next War Now: Effective Responses to Violence and Terrorism (New World Library). Jackson is a graduate of Sarah Lawrence College and has an MA in sociology from the New School for Social Research.


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Neil Gorsuch Will Find a Way to Rule With the Corporations

Friday, March 31, 2017 By Janine Jackson, FAIR | Interview
  • font size decrease font size decrease font size increase font size increase font size
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Media

Judge Neil Gorsuch, Donald Trump's nominee for the Supreme Court, while testifying on the third day of his confirmation hearing before the Senate Judiciary Committee on Capitol Hill, in Washington, DC, March 22, 2017. (Photo: Eric Thayer / The New York Times) Judge Neil Gorsuch, Donald Trump's nominee for the Supreme Court, while testifying on the third day of his confirmation hearing before the Senate Judiciary Committee on Capitol Hill, in Washington, DC, March 22, 2017. (Photo: Eric Thayer / The New York Times)

Janine Jackson: The Washington Post ran an op-ed last month by a Princeton professor headlined "Ignore the Attacks on Neil Gorsuch. He's an Intellectual Giant -- and a Good Man." But at that point, especially, you had to ask -- what attacks?

Well, it's somewhat different now, with an announcement on March 28 that Democrats may filibuster the nomination. But for media, it's all over. The New York Times says Gorsuch will probably be confirmed, the Chicago Tribune said he's earned it, USA Today says he "sailed through."

But has the public learned enough about the man who could help shape laws that affect us all? Dan Goldberg is legal director at the group Alliance for Justice; he joins us now by phone from Washington, DC. Welcome to CounterSpin, Dan Goldberg.

Dan Golberg: Thank you very much for having me.

Well, a number of people were put off by his coyness and his dancing around questions -- and they were off-putting. But Alliance for Justice, along with other groups, have been producing bulletins on Gorsuch's record, outlining a number of serious concerns about the kinds of justice he would be, beyond that smarminess. And there are quite a lot of those points of concern. You can start anywhere; what are some of the things that trouble you most about his judicial record?

You rightly pointed out how little information Judge Gorsuch was willing to give the American people about his record, about where he stands on key issues affecting so many Americans, about what his constitutional values are, and whether he'll protect critical legal protections. He went out of his way over two days of questioning not to answer key questions from members of the Senate.

And, to be honest, what's troubling about that is not just that he wouldn't answer questions, that he wouldn't be forthcoming, but that there was a reason he didn't want to do so, and that's because he wanted to hide his record from the American people. I think we're confident that once the American people know who Judge Gorsuch is, they'll make clear to their representatives that this is not an individual they want to have a lifetime seat on the Supreme Court, impacting their lives and their children's lives for generations.

What is clear with our review of the record, and what has come across throughout the hearing, through some of the key questions that, in particular, Democratic senators asked, was this is an individual who wants to, and has, undermined legal protections that workers rely on, whether that's to ensure safe workplaces or fair wages. He's undermined protections that women rely on, whether that's for equal opportunity in the workforce, equal education, or making sure that they have access to quality healthcare. He's undermined critical protections for the rights of Americans with disabilities. And the list goes on and on.

And I think you started with a quote from the Princeton professor. This isn't about his intellect or whether he's a good man or not. I, quite frankly, believe those are probably adjectives that describe him. But the question is, if he gets to the Supreme Court, whose side is he going to be on? Is he going to be on the side of the law, the Constitution, and upholding rights and legal protections for everyday Americans? Or -- and this is quite abundantly clear, from his ten years on the Court of Appeals -- is he somebody who's going to side with corporations, with the powerful, and not be an independent check on the excesses of the Trump administration?

He went out of his way to hide his record, but I think if you look at the cases he's decided and what he has said, this is an extreme nominee who will cause -- it's hard to overstate the damage he will do to our country and, more importantly, to everyday Americans.

He seemed almost offended by certain questions, and claimed he doesn't care who's rich or poor, that there's no such thing as a Republican justice or a Democratic justice. That seems specious, because when you look, then, at the actual record -- so maybe let's look at some actual examples. One thing that folks are really concerned about is that Gorsuch seems to believe corporations are people.

That's 100 percent correct. He was on the original Hobby Lobby case. This is the case regarding whether for-profit corporations have a right, under healthcare law, to deny critical reproductive healthcare and access to contraceptives to their women employees. It was a remarkable decision that really was counter to 200 years of legal tradition and analysis. I think one of the senators pointed out to Neil Gorsuch that he calls himself an originalist, but nowhere in The Federalist Papers does it say that the founders intended for-profit corporations to enjoy the same rights as the American people.

And what's particularly troubling in that is not just that he held that for-profit corporations are people with legal rights, but that those rights trump the rights of everyday Americans. Nowhere in his decision in Hobby Lobby does he talk about even the need to balance the interests of the women who rely on employer-sponsored healthcare. It was a callous decision, it was not legally right, and it just demonstrates how results-oriented he is.

Let me give you one more example in that context, and that's the case of Planned Parenthood v. Utah. This was a case where the Republican governor of Utah decided, after the false videos came out regarding Planned Parenthood, to unilaterally defund Planned Parenthood in Utah, hurting thousands of women who rely on the organization for critical access to healthcare. Planned Parenthood sued, and judges on the Tenth Circuit Court of Appeals rightly decided that they were entitled to a preliminary injunction blocking the governor's unilateral action.

Neil Gorsuch, on his own, without the state of Utah even appealing, sought en banc review, full court review, of that Tenth Circuit panel decision. He lost. The majority of judges on the Tenth Circuit rightly recognized the preliminary injunction was proper. Another judge on the panel, characterizing Judge Gorsuch's opinion in that case, pointed out that he misrepresented the facts and the law in that case numerous times in his opinion. Again, just a results-oriented approach designed to shield the unilateral actions of a Republican governor to take away critical healthcare for women.

I did want to ask you about the question of people with disabilities, because that's one where we've seen something very interesting this week. Gorsuch wrote, of course, the opinion for this 2008 decision that rejected the claim that a Colorado school district wasn't doing enough to educate an autistic student. Now the Supreme Court, even during his hearing, has come out and said that that is not correct, and in fact has kind of smacked at the Tenth Circuit for that decision. Can you tell us what Gorsuch's role was there and what it means?

Well, they had a really awful set of facts. The case was involving a child by the name of Luke P, and if you have a chance, his father testified earlier today before the Senate Judiciary Committee, and could not have been more powerful in demonstrating the steps that Neil Gorsuch took to undermine the education opportunities for his child. Luke P had autism; it was undisputed that he was not getting the education he needed, and was entitled under the IDEA to a free and appropriate meaningful education. The facts demonstrated that he was only meeting 25 percent of his goals, his educational goals, in the school, and he rightly exercised his rights under an act of Congress, the IDEA, to demand that the school district do more to properly educate his child.

And Neil Gorsuch, in his opinion, rejected Luke P's claim, and in doing so the standard he created, which appears nowhere in law, nowhere in the statute, nowhere in prior Supreme Court precedent, nowhere in prior Tenth Circuit precedent, is that Luke P was only entitled to "merely de minimis" education. Taking it out of the disability context, I think any parent would be outraged if they are told that a school is only teaching their child 25 percent of his goals, and that that child is only entitled to merely more than a de minimis education. That is not the equal opportunity that Congress set forth in the IDEA. It demonstrated Neil Gorsuch's callousness to the situation Luke P found himself in. It demonstrated Neil Gorsuch's contempt for the efforts of Congress to ensure equal opportunity for all persons, including those with disability.

And as you alluded to, in another case involving the Tenth Circuit, which had adopted Neil Gorsuch's standard, the Supreme Court just yesterday unanimously, every single judge on the Supreme Court, Democratic-appointed and Republican-appointed alike, eviscerated Neil Gorsuch's standard, and made clear that that was not the intent of Congress, and a merely de minimis education is the same as no education at all. I've never seen anything like it, where the Supreme Court unanimously demonstrates, on the same day the nominee is testifying, how unqualified this nominee is to be on the Supreme Court.

And yet I look at the news and I see that the media think he sailed through and that he's earned the position and, you know, let's just move it along. I don't understand that disconnect, I guess.

Well, I think one thing to keep in mind is, just today, Senator Schumer had a terrific statement where he laid out his opposition to Neil Gorsuch, and made clear that the Democrats are going to follow the practice that has been followed in the past, that this is a lifetime seat on the Supreme Court; for an individual to be confirmed, they should be somebody within the mainstream who enjoys broad bipartisan support.

Yes. And there was another case I wanted to ask you about that also involved disability. Can you tell us about that?

That's the case of Grace Hwang v. Kansas State University. This is a woman who had been a professor for 15 years, and she came down with breast cancer and then leukemia. And she took six months of leave, as authorized by the university, so she could have a bone marrow transplant. And as she was coming back to school to teach, an H1N1 virus, there was an outbreak throughout the state of Kansas, including on the Kansas State University. And her doctor told her, your immune system is shot because of the cancer and treatment, and if you return to campus you could potentially die.

So she did what she was authorized to do under the Rehabilitation Act, which is the same as the Americans with Disabilities Act, but for public entities: She asked her employer for an additional several weeks of leave. She even offered to work from home, to teach classes over the internet, to work with substitute teachers. And her employer said no, that she was not entitled to any additional leave, and she lost her job. She filed suit under the Rehabilitation Act, which says that an employee, somebody with a disability -- in this case cancer -- was entitled to a reasonable accommodation unless there's an undue burden on the employer.

Neil Gorsuch ruled that the company was justified in not giving her additional leave. He said that six months leave that she was entitled to was, quote unquote, "sufficient" for her. Then he said that it was irrelevant that Kansas State University had given additional leave to other professors so they could take a sabbatical; she was still not entitled to this leave. And, finally, what he said was that the Rehabilitation Act is not meant to be a "safety net for those who cannot work," just demonstrating the callousness of who Neil Gorsuch is, as if he was comparing a woman just trying to survive with, in his mind, somebody laying on the couch eating Cheetos, trying to game the system so they could watch soap operas instead of working. And, again, what's critical is Congress put in place a statute to protect people like Grace Hwang, and Neil Gorsuch substituted his own views as to what he thought the burden on an employer was, to ensure that Grace Hwang did not get the justice she deserved.

It just adds, doesn't it, to the disheartening…

Her family wrote an incredibly moving op-ed that was printed in the San Francisco Chronicle. There is countless case law throughout the country that makes clear that whether something is a reasonable accommodation or an undue burden is a very fact-intensive, case-by-case determination. And what he said is, instead of allowing a jury to make this determination, as the law generally recognizes, he on his own decided six months leave was sufficient, period -- again, just demonstrating the steps he'll take to deny individuals critical legal protections.

Yeah, and putting the lie to this kind of performance that he gave about, you know, I just follow the statute, I don't -- I'm not an activist. Yeah.

Exactly. Quite frankly, he came about as close as he could get to using the balls and strikes analogy, like Chief Justice Roberts when he testified in his confirmation hearing. And what comes across in all of these cases -- the freezing truck driver, Grace Hwang, Luke P, and the list goes on and on -- the reality is that when it comes to choosing between acts of Congress, legal protections and everyday Americans, or corporations, he's going to find a way to rule with the corporations almost every single time.

Well, we don't know exactly what's going to happen, we're right in the midst of it right now, so we'll keep on top of it. But thank you very, very much, Dan Goldberg of the Alliance for Justice, for speaking with us this week on CounterSpin. And folks can find your work on Gorsuch and other things on line at afj.org. Thank you so much, Dan Goldberg.

Thank you for having me. Really appreciate it.

This piece was reprinted by Truthout with permission or license. It may not be reproduced in any form without permission or license from the source.

Janine Jackson

Janine Jackson is FAIR's program director and and producer/host of FAIR's syndicated radio show "CounterSpin." She contributes frequently to FAIR's newsletter Extra!, and co-edited The FAIR Reader: An Extra! Review of Press and Politics in the '90s (Westview Press). She has appeared on ABC's "Nightline" and "CNN Headline News," among other outlets, and has testified to the Senate Communications Subcommittee on budget reauthorization for the Corporation for Public Broadcasting. Her articles have appeared in various publications, including In These Times and the UAW's Solidarity, and in books including Civil Rights Since 1787 (New York University Press) and Stop the Next War Now: Effective Responses to Violence and Terrorism (New World Library). Jackson is a graduate of Sarah Lawrence College and has an MA in sociology from the New School for Social Research.


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