Franken v Gorsuch

Last week, Senator Al Franken (D-SNL) questioned Judge Neil Gorsuch about a case from last year. And when I say “questioned”, I mean told Gorsuch what he thought he should have done. If you wanted to find out why Gorsuch ruled the way he did, you won’t find it in the 8-minute video below.

These hearings are trying to determine whether or not Gorsuch is qualified. Franken apparently thought they were all about him. Otherwise, why not let Gorsuch explain himself even once?

Worse, this  demonstrated a view of the judiciary that the Left has, which turns us into a nation, not of laws, but of the whims of whoever’s in power. You’d think that, in the age of Trump, they’d try to avoid that at all costs. Nope.

Mentioned links:

Neil Gorsuch earns his Supreme Court seat

Getting some shopping done? If you're going to shop at Amazon, please consider clicking on my affiliate link. Thanks!

On Apple devices, you can subscribe to the podcast via iTunes.

If you're on Android, listen with Google Podcasts.

Stitcher Radio is another possibility for both Apple and Android devices. If you do download Stitcher to your phone, please use the promo code “ConsiderThis” to let them know where you heard about it.

Browser-based options are the Blubrry Network and

And if you have some other podcatcher or RSS reader, click here to get the direct feed and paste it wherever you need it.

I would love it if you would spread the word about the podcast! Click the Facebook, Twitter, and other icons (or all of them!) at the bottom of this post to recommend "Consider This!" to your social media audience.

Show transcript

The confirmation hearings for Judge Neil Gorsuch occurred last week, and Democrats, who unanimously approved his appointment to the federal bench found themselves in the position of tearing down a Justice they voted for just ten years ago. In order to do this, they zeroed in on a single case from last year.

First, you need to understand that this is one case out of about 2,700 he had heard. Of those cases, 97% were decided unanimously, and 99% of the time he was in the majority. So Democrats had precious little to work with to try to paint Neil Gorsuch as out of the mainstream.

In this case, he was the sole dissenting judge where a truck driver, stranded in sub-zero weather, disobeyed the directions of his supervisor and left his truck on the side of the road to seek shelter.

Why would Judge Neil Gorsuch make such a ruling? What was he thinking? Keep that question in mind. It is the central question of the whole case.

Before the hearings, Democrats brought out the truck driver, Alphonse Maddin, as part of the political theater. He got a chance to tell his side of the story. I agree that on its face, the decision is very puzzling. When faced with the choice of life and death, how can you rule against someone choosing to stay alive? In the end, I believe the panel of judges made the right decision, ruling in favor of Maddin. What was Judge Gorsuch thinking?

Again, there’s that question.

During the confirmation hearings, Senator Al Franken took part of his time to pursue that line of questioning. He spent 8 minutes on this subject. Let’s find out how he used that time.

Franken, after saying he understood the reasoning behind the dissent, then said he was puzzled by it. Only Al Franken could be puzzled by something he says he understands. The implication is he’s going to ask Judge Gorsuch to sexplain himself. Let’s find out if he does.

While laying out the facts of the case, Franken asks Gorsuch a few questions. Would you want to be on the interstate with a slow truck that has frozen brakes? The cab’s brakes were OK but the trailer’s were frozen, so Maddin did not want to drive it on the highway.  Gorsuch answers No. Is this a question about the law or Gorsuch’s application of it as a judge? No.

He then asks Gorsuch a hypothetical question. Which would you have done; stay with the truck and possibly freeze to death, or do what Maddin did and leave to get warm first? Maddin unhitched the trailer and drove away to get warm for about 15 minutes. Gorsuch answered that he had no idea what he would do in that situation. Franken made a big deal about the fact that Gorsuch didn’t answer Yes or No, while Gorsuch insisted he can’t imagine what he would do in that same situation. Gorsuch even acknowledged that he understood completely why Maddin made the choice he did. But for Franken, this was the most important issue; whether or not Gorsuch would do what the defendant did given the same situation.

Franken summarized that dissent in a single, short sentence and wanted Gorsuch to agree with it. Up until now, Franken has not let Gorsuch say much of anything, interrupting him if ever he tried to say anything other than Yes or No, so clearly he wasn’t going to let him fully explain his dissenting opinion. Gorsuch is left with having to say that, Yes, that’s the gist, but there’s much more to it. At this point, we still do not know the full reasoning behind Gorsuch’s decision

Franken then acknowledges that Gorsuch relied on what’s called the “plain meaning” of the law. When you can make a decision based on the actual wording of the law, you should not look elsewhere for guidance on how to make a ruling. But then Franken notes another legal precept; that if the plain meaning creates an “absurd” situation, then the plain meaning can be thrown out. He then finished by saying that this dissent was absurd, and it made him question Gorsuch’s judgement.

And that’s it. That was the end of the line of “questioning”, if you want to call it that. Franken never asked for an explanation. How could he question his judgement if he didn’t ask a question about it…oh, and let the question be answered?

If the hearings are designed to determine if a certain person can be a Justice in the Supreme Court, that 8 minutes of time did nothing to further that. What we did find out is how Franken read the law, and how Franken would have judged it. We learned nothing about Neil Gorsuch at all.

We also found out how Franken thinks judges should rule. The key question he asked was what Gorsuch would have done in the same situation. Apparently what matters more is if a judge can imagine him- or herself doing the same thing in the same situation. Franken doesn’t want to know how Gorsuch applied the law, or what he was thinking; he wants the right outcome. I’ll say again that I think Maddin got justice by the ruling in his favor. I would really like to hear Neil Gorsuch explain himself. But Franken didn’t go there, which leads me to believe that he did not want to go there, because the answer might have actually been legally sound, while Franken was appealing to emotion. The answer might have been logical, but Franken certainly couldn’t have any of that.

Now, if Gorsuch had been given a chance to explain himself, I’m not entirely sure I would have understood it. I am not a lawyer. But you know what? The vast majority of those who rooted for Franken aren’t lawyers either, which is why the emotional appeal played so well with folks who were already predisposed to be against him, and which, I believe, is why there are so many YouTube videos of this exchange, one of which is in the show notes.

But you know what I couldn’t find a video of? Gorsuch being given a chance to actually defend himself when questioned on the same topic by Dick Durbin. Maybe because it lets Gorsuch actually, y’know, explain himself a little. At the hearings, Democrats harassed Gorsuch for being unfeeling, but the judge said his empathy for the driver was beside the point. His explanation was this:

My job is to apply the law as written. The law said he would be protected if he refused to operate. By any plain understanding, he operated the vehicle. And if Congress wishes to revise the law — I wrote this: I said it was an unkind decision, it might have been a wrong decision, a bad decision, but my job isn’t to write the law, Senator, it’s to apply the law. And if Congress passes a law saying a trucker in those circumstances gets to choose how to operate his vehicle, I will be the first in line to enforce it.

The test of a good judge is whether they can make lawful rulings that they personally disagree with. That doesn’t get as much play in the media or YouTube. But Al Franken, like any good comedian, knows his audience. Despite the fact that this case had been covered to some extent already in these hearings, he had to lay out the case from square 1, because to invite viewers to go back and look for that explanation from Gorsuch would work against his ploy to make that emotional appeal with hardly a word from the nominee in response.

Gorsuch found a flaw in the law, and Franken clearly expects judges to fix those laws on the fly, instead of the Legislative Branch doing their job; a branch that Franken, ironically enough, is a member of. He is not only advocating that the Judicial Branch decide cases based on emotions, but he’s actively abdicating his own responsibility in fixing bad laws!

And consider this; what if Gorsuch had ruled in an abortion case that allowed a baby to live rather than be killed? You just know Democrats would instantly become “letter of the law” types, and disparage any emotional appeal there.

It’s clear that Franken’s test for a good judge is one that will rule the way Franken wants him or her to rule. Never mind the law, just do what I want you to do. That is reckless and a clear danger to the separation of powers. Judges don’t make the law; judges apply the law. Franken and his supporters need to rediscover that founding principle. It will bring us better Legislative and Judicial branches of government. As John Adams explained, ours is a government of laws, not men. You are judged according to the laws that our representatives have passed, not by the whims of the particular government official who happens to be hearing your case today. It is downright scary that someone who has so clearly forgotten these principles is part of a committee to help choose a Supreme Court justice.

OK, that was a little longer than usual, but I think it had to be said. This is what I see as a big problem with the Left; they want the outcome they want, regardless of the law, as opposed to doing the hard work of getting the law right. They still haven’t learned the lesson (especially in the era of Trump) that if what is and isn’t lawful is based so heavily on who is running the government today, then tomorrow it could all be turned on its head, leaving the people to never know what the law really is. As I’ve said, while Trump was pumping out Executive Orders to overturn Obama’s, live by the EO, die by the EO. And so now I say to Senator Franken, live by emotional appeals, die by emotional appeals. If the biases of the judge are allowed to hold such sway in court, we’re in trouble.

Filed under: GovernmentJudiciary