March 31, 2017
By Steven Wishnia
Washington, DC - With Senate Republicans planning a vote to confirm Neil Gorsuch to the Supreme Court for the first week of April, the nation’s labor movement has largely lined up against the nominee.
The AFL-CIO and seven of the 12 biggest U.S. unions have urged the Senate to vote against confirming Gorsuch: the National Education Association; the Service Employees International Union; the American Federation of State, County, and Municipal Workers; the American Federation of Teachers; the United Steelworkers; the United Auto Workers; and the Communications Workers of America.
“Judge Neil Gorsuch's record on the U.S. Court of Appeals for the Tenth Circuit demonstrates that he is far more likely to rule in favor of corporate interests and against the interests of working men and women,” AFL-CIO President Richard Trumka said in a statement Mar. 23. “He routinely rules against workers in health and safety cases; he regularly rejects the claims of employees seeking relief from discrimination in the workplace; and he frequently denies workers' efforts to secure earned wages and benefits.” He added that Gorsuch would “further skew the Court against working people and in favor of corporations.”
The Teamsters Union and the United Food and Commercial Workers have not explicitly opposed Gorsuch, but after President Donald Trump announced his nomination Jan. 31, the UFCW said “there is deep and justified skepticism” about his record in labor cases, and the Teamsters said it “raises serious concerns.”
The International Brotherhood of Electrical Workers, the Laborers International Union of North America, and the International Association of Machinists have not made any official public statements on the nomination. But on March 16, Machinists members lobbying Congress on health care and other issues with the Coalition of Labor Union Women “also let each office know they do not support the nomination of Neil Gorsuch for the Supreme Court.”
Several IBEW locals have also criticized the nomination, with Tom Dalzell, business manager of Local 1245 in central California, telling members that Gorsuch was “a far-right judge whose record indicates that he is more conservative than Justice Samuel Alito,” and that with several cases challenging public employees’ right to a union shop moving through the lower courts, “Gorsuch’s ruling could be devastating to our union and others.”
Gorsuch’s union critics single out his dissent in the 2016 case where the 10th Circuit ruled 6-1 that TransAm Trucking of Olathe, Kansas, had unfairly fired driver Alphonse Maddin. Maddin had been driving a truckload of meat on Interstate 88 in Illinois late one night in January 2009 when the brakes on his trailer froze. After waiting for more than three hours in subzero temperatures in a truck with a broken heater, he detached the cab and drove off to find somewhere warm.
Gorsuch argued that Maddin’s safety concerns weren’t enough for him to keep his job, because federal law “only forbids employers from firing employees who ‘refuse to operate a vehicle’ out of safety concerns”—and Maddin “wasn’t fired for refusing to operate his vehicle.”
“I could not feel my feet. My skin was burning and cracking. My speech was slurred, and I was having trouble breathing. I started having thoughts that I was going to die,” Maddin said at a press conference March 15 with Senate Minority Leader Charles Schumer (D-N.Y) and Richard Blumenthal (D-Conn.). The Steelworkers posted the video online under the headline “Hear from Americans Hurt by Judge Gorsuch's Rulings.”
“He demonstrated a willingness to artfully diminish the humane element,” Maddin added, and ignored the law’s intent “to maintain safe and humane working conditions.”
Schumer is trying to organize Senate Democrats to filibuster the confirmation vote. If that happens, Majority Leader Mitch McConnell (R-Ky.) has said, the Republicans could use their 52-48 majority to change the rules to prohibit filibustering Supreme Court nominees.
The AFT and SEIU had leaned against Gorsuch since he was nominated, and his testimony before the Senate Judiciary Committee Mar. 20-22 confirmed that position. SEIU President Mary Kay Henry on Mar. 22 criticized his “refusal to answer fair and direct questions” and said the hearings “again proved that he isn’t the kind of judge who gives working people a fair shot at justice.”
The NEA’s biggest problem is Gorsuch’s record on cases involving students with disabilities. Union President Lily Eskelsen Garcia, a former special-education teacher, said in a report Mar. 9 that the judge “has gone out of his way to impose extra legal barriers” for them and “allowed public schools to provide our highest-needs students with the bare minimum educational benefit.” She cited a 2008 case in which the 10th Circuit ruled that a Colorado school district did not have to help an autistic nine-year-old develop his social and emotional skills both in the classroom and at home. Gorsuch, who wrote the decision, said federal law requires only “a formula that can reasonably be expected to generate some progress.”
The Supreme Court unanimously overruled that decision Mar. 22. Chief Justice John G. Roberts Jr. wrote that the federal Individuals With Disabilities Education Act requires “free appropriate public education,” and that “a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all.”
UAW President Dennis D. Williams called Gorsuch’s judicial philosophy “disturbing” in a Mar. 29 letter to senators. He said it “demonstrates a desire” to overturn the “delegation” precedent established by the Supreme Court in 1935, which limits Congress’s power to interfere with the way federal agencies, such as the National Labor Relations Board and the Equal Employment Opportunity Commission, interpret laws.
“The Constitution does not require the Supreme Court to have nine justices,” Williams wrote. “The seat should remain vacant until the Senate is presented with a nominee that strongly supports the rights of working families.”