Bench Memos

Law & the Courts

Jeffrey Toobin Smears Gorsuch

The New Yorker’s Jeffrey Toobin has penned a hit piece on Supreme Court nominee that plumbs new depths of incompetence.

1. When I first skimmed the piece, I was struck by Toobin’s discussion of the TransAm trucker case. Here’s his entire account of the positions taken by the majority and by Gorsuch’s dissent:

The majority in the case called the dismissal unjustified, but Gorsuch said that the driver was in the wrong.

But, as I’ve explained (and as ought to have been obvious to anyone who paid attention to the hearing), the panel wasn’t deciding whether the company’s dismissal of the trucker was generally “unjustified.” Rather, it was deciding whether a specific whistleblower provision, which makes it unlawful for an employer to discharge an employee who “refuses to operate a vehicle” because of safety concerns, barred the firing. Far from maintaining that “the driver was in the wrong,” Gorsuch merely concluded that the whistleblower provision did not apply:

[T]hat statute only forbids employers from firing employees who “refuse[] to operate a vehicle” out of safety concerns. And, of course, nothing like that happened here. The trucker in this case wasn’t fired for refusing to operate his vehicle. Indeed, his employer gave him the very option the statute says it must: once he voiced safety concerns, TransAm expressly — and by everyone’s admission — permitted him to sit and remain where he was and wait for help. The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not. And there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid. Maybe the Department [of Labor] would like such a law, maybe someday Congress will adorn our federal statute books with such a law. But it isn’t there yet. And it isn’t our job to write one — or to allow the Department to write one in Congress’s place. [Italics in original; underlining added.]

Gorsuch didn’t defend the company’s conduct. He simply opined that the company hadn’t violated the whistleblower provision:

It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.

Gorsuch’s dissent, which Toobin mislabels as being “of almost Gothic cruelty,” is all that Toobin offers for his claim that Gorsuch has a “predilection for employers over employees.”

2. As I looked more carefully, I discovered that Toobin’s piece was a cavalcade of folly. Some examples:

a. Toobin claims that “Gorsuch portrayed himself as a kind of judicial automaton, obligated to pay mindless obeisance to the Court’s prior rulings.”

Did Toobin actually watch any of the hearing? Gorsuch specifically stated that judging is not a matter of applying “algorithms.” Further, he treated precedent only as the starting point, and, far from ever claiming that precedent is sacrosanct, referred repeatedly to the various factors (discussed in the 900-page book on precedent that he recently co-authored) that bear on whether and when precedent should be overturned.

b. Toobin asserts that Gorsuch’s “background also includes a dose of pro-corporate, deregulatory libertarianism, as reflected in his close relationship with the billionaire Philip Anschutz, a client turned mentor.”

I’ve seen Anschutz described as a conservative Christian, not a libertarian, and if there was anything in Gorsuch’s legal work that advanced the cause of “pro-corporate, deregulatory libertarianism,” I don’t see it in this New York Times account of Gorsuch’s relationship with Anschutz. As a Tenth Circuit judge, Gorsuch has recused himself from all cases involving Anschutz and his companies, and, per NYT, the continuing “close relationship” consists of little more than Gorsuch’s being a “semiregular speaker” at Anschutz’s “dove-hunting retreats.”

c. Toobin claims, “A sampling of authoritarianism can be seen in Gorsuch’s service in George W. Bush’s Justice Department, where he helped craft a proposal for the treatment of detainees at Guantánamo.” But the proposal Toobin is referring to was the bipartisan Detainee Treatment Act, which aimed to clarify the handling of detainees suspected of terrorism. The Senate approved the two separate measures that comprise the Act by votes of 90-9 and 84-14. That’s sure some “authoritarianism.”

d. Of Gorsuch’s 320-page book against assisted suicide, Toobin claims, “It’s easy to read the book as a coded attack on abortion rights.” Yeah, right: a 320-page code that has a footnote that specifically disclaims addressing the abortion issue. Toobin gives no sign that he’s read a page of the book.

e. Toobin claims that “Gorsuch would embrace the deregulation of campaign finance” and, as his sole support for that proposition, states that Gorsuch “argued in an opinion that judges should evaluate limits on political contributions using the same tough standards that they apply to racial discrimination.” But, as he testified (and as I’ve shown), Gorsuch made no such argument but instead highlighted the “conflicting cues” that Supreme Court precedents provided.

f. Toobin claims that Gorsuch was “taking a side in the culture wars” when he and his fellow members of the en banc majority in the Hobby Lobby case “ruled that a multibillion-dollar corporation could withhold federally guaranteed rights to birth control from thousands of female employees because of the religious beliefs of the corporation’s owners.”

The reader would have no idea that the ruling vindicated the “federally guaranteed rights” of religious liberty that the federal Religious Freedom Restoration Act provided, nor that the corporation was closely held (rather than public). Far from “taking a side in the culture wars,” Gorsuch merely enforced the text of federal religious-liberty laws, just as he has done on behalf of a Native American prisoner seeking access to a sweat lodge and a Muslim prisoner seeking halal food.

g. Toobin finds it “embarrassing” for Gorsuch that the Supreme Court “unanimously rejected one of his holdings” on the second day of his testimony. Never mind that the actual case before the Court wasn’t Gorsuch’s but a follow-on. Toobin doesn’t inform his readers that liberal Clinton appointee Mary Beck Briscoe joined Gorsuch’s unanimous opinion nor that they were seeking to apply circuit precedent.

h. Toobin claims that, by not acting on President Obama’s nomination of Merrick Garland, “the Republicans denied Obama his constitutional right.” But Obama did not have a “constitutional right” to have Garland confirmed. He had a constitutional power to nominate Garland, and he exercised that power. The Senate had a constitutional power to block that nomination, and it exercised that power. Simple as that.


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