I watched some, but nothing close to all, of the Gorsuch hearing.

I mostly watched the Al Franken excoriation, but also, merely by chance, some of Hatch and Cruz softball interludes.

It is, of course, what I expected (as briefly outlined in "Can we expect the Gorsuch hearings to be anything but bland blather?").

Gorsuch is doing the usual routine as well as it can be done. He looks great. Wonderful voice. Not only unflappable but never giving rise even to the slightest anxiety/hope that he could become less than rock-solid unflappable.

The Democrats on the committee know there's no stopping him, so what are they doing? Each one gets so much time to labor through their questions, which — if I can judge from Franken — all seem to be paraphrasable as: Aren't you a big meanie who, like all Republicans, hates the little guy and wouldn't shed a tear if he froze to death before your very eyes?



The Democrats need to do some theater, enough to skirt criticism from their base. It's a little tricky. If they bear down, they look like they're politicizing the judiciary, and every damn time Gorsuch will deploy one of his 10 elegant ways to inform them — as if they're the slowest learners on the planet — that it is not the role of the judiciary to engage in politics.

I can only take so much, but I did watch Franken. You can watch the clip and hear him go on and on about a man who got fired for driving a truck — despite its malfunctioning brakes — because he was freezing and the truck would warm him up. [NOTE: That's not quite right, as explained under  "ADDED," below.] There was a statute that protected truck drivers from getting fired for refusing to drive a malfunctioning truck, but this was the opposite. His employer wanted him not to drive the malfunctioning truck, and he did it anyway, to save himself from freezing (or so we are told).

The legal question was only whether the statute applied, not whether we feel sorry for the man or whether we would have fired him. Judge Gorsuch used the plain meaning of the statute. But judges might depart from the plain meaning of the text when it is necessary to avoid giving the language an absurd meaning, but it's obvious that the statute had a non-absurd meaning (which was to protect drivers who decline to drive defective trucks). But Franken, blatantly twisting the meaning of "absurd" — and reminding us that he was once a comedian — said:

“It is absurd to say this company is in its rights to fire him because he made the choice of possibly dying from freezing to death or causing other people to die possibly by driving an unsafe vehicle. That’s absurd. Now, I had a career in identifying absurdity. And I know it when I see it. And it makes me question your judgment.”

If that's what counts as "absurd," then judges could take any statute and twist it to mean whatever it would need to mean to allow them to bestow victory on any party the judge feels empathy with. That's a terrible idea for statutory interpretation. But Franken was into his own cuteness, chuckling at the wittiness of "I had a career in identifying absurdity." But the absurdity is in thinking that the ways of comedy would transfer to legal analysis.

And did Franken even hear himself? He said it was absurd to fire a man who chose his own life over the lives of others: "the choice of possibly dying from freezing to death or caus[ing] other people to die possible by driving an unsafe vehicle." What's absurd about saying we don't want you driving for us if you'd choose to warm yourself up by driving a truck with defective brakes? The truck driver risked freezing to death if he didn't drive the truck, but driving the truck risked the death of himself and others. It's not absurd to say, he was wrong to drive the truck.

But even if you think it would be absurd not to drive the truck, the truck driver could only win if the statute that protected drivers who refused to drive defective trucks has only an absurd meaning if it's not stretched to protect drivers who don't refuse to drive defective trucks.

Gorsuch put up with the nonsense and didn't let all that taunting exasperate him. He knew that any show of irritation with Franken, any patronizing tone, might look like that lack of empathy Franken wanted to dramatize.

In Franken's heat about cold, Gorsuch kept his cool.

ADDED: I've got something really wrong about the case. The brakes on the trailer had locked, but the tractor unit could drive. Somehow the heat in the tractor unit was also broken. The man decided to unhitch the trailer and drive the tractor unit. The tractor unit itself was not defective, and he wasn't endangering others by driving that tractor unit in an effort to get somewhere to warm himself. But he disobeyed directions to stay with the trailer, and that's what got him fired. But the problem remains: He wasn't refusing to drive something that was defective. He was choosing to drive. We may agree that he made a good decision and think the company was cruel to fire him, but the legal question was whether he had a right to keep his job for doing something the company thought was a firing offense — abandoning the trailer.

Here's a detailed discussion of the legal question that brings out the issues much better than Franken did. I'm sorry I relied too much on Franken's emotive presentation of the case. There may have been some room to stretch the statute to give the man credit for refusing to pull the trailer (as he proceeded to drive the unhitched tractor unit). In fact, as you can see at that link, the Occupational Safety and Health Administration had interpreted the statute that way. This gets to the important subject of deferring to the agency's interpretation (Chevron deference), which is what the majority did in the case. Gorsuch was dissenting.

ALSO: While empathy has been central to the Democrats' idea of judging and this case gave Franken material to push that theme dramatically, it's the Chevron deference question that is most important from a legal perspective. Here's lawprof Philip Hamburger in "Gorsuch’s Collision Course With the Administrative State." Hamburger concludes:

Chevron is a widely cited precedent, and precedents should never be casually overturned. But Chevron deprives Americans of their right to have judges who exercise their own independent judgment without systematic bias. Chevron is thus grossly unconstitutional — not least, a persistent denial of the due process of law.

Judges have a duty to reject Chevron with candor and clarity. Judge Gorsuch has done this. Rather than be berated for it, he should be congratulated.