Print      
Gorsuch fails common-sense test
By Joan Vennochi
Globe Columnist

The case against Judge Neil Gorsuch is not about qualifications, as measured by a Harvard pedigree or folksy affect. It’s about a judge who interprets the law as narrowly as possible, no matter how much that hurts people, be they Democrats or Republicans.

Gorsuch was called out for doing just that by the Supreme Court, the body he seeks to join. In a unanimous decision that came down during his confirmation hearing, the Court said Gorsuch used the wrong test in a 2008 case in which he denied a child with autism placement in a private residential facility because his parents believed the public school district was not doing enough.

In that Tenth Circuit Court of Appeals case, Gorsuch said the standard of education mandated by federal disability law “must merely be ‘more than de minimis.’ ’’ The Supreme Court disagreed. “When all is said and done, 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,’’ wrote Chief Justice John Roberts. “For children with disabilities, receiving instruction that aims so low would be tantamount to ‘sitting idly . . . awaiting the time when they were old enough to drop out.’’ The law, said Roberts, demands more.

At his hearing, Gorsuch defended his decision on grounds of precedent. “If anyone is suggesting that I like a result where an autistic child happens to lose, it’s a heartbreaking accusation,’’ he said. “Heartbreaking.’’ Heartbreaking it was — to that child and his family. As Jeffrey D. Perkins, the father of the plaintiff in the 2008 case, testified, “Judge Gorsuch felt that an education for my son that was even one small step above insignificant was acceptable.’’ On a media call afterwards, Perkins said the Gorsuch ruling “fails the common-sense test.’’

Gorsuch flunked the same test in what has come to be known as “the frozen trucker’’ case. It involved a truck driver who was stranded after his trailer’s brakes locked up in freezing weather. After nearly three hours in frigid temperatures, waiting for help that didn’t come, the trucker drove the cab away and was fired for abandoning the trailer. A federal law prohibits an employer from firing someone who “refuses to operate a vehicle because . . . the employee has a reasonable apprehension of serious injury.’’ But Gorsuch, in a dissenting opinion, said the law didn’t apply, because the trucker drove his truck and did not refuse to operate it. Explaining the decision at his confirmation hearing, Gorsuch said, “My job is not to write the law. My job is to apply the law. “ If Congress passed a law saying a trucker in those circumstances can choose how to operate his vehicle — that he would enforce.

That’s a narrow definition of the role of jurist, with cruel consequences for the trucker. In the case involving the child with autism, the Supreme Court basically said Gorsuch’s narrow definition of federal disability rights law ignored its true intent — again, with cruel consequences.

According to The Arc, a national advocacy group for people with intellectual and developmental disabilities, a review of Gorsuch’s cases shows that he almost always ruled against a plaintiff with a disability. “Perhaps the most common thread uniting these opinions’’ is his “strictly textualist approach to interpreting laws,’’ wrote Shira Wakschlag, director of legal advocacy and associate general counsel for The Arc. “This approach leads him to frequently disregard legislative history and congressional intent in favor of deciphering the ‘objective’ meaning of the law’s text in a vacuum, ultimately resulting in very narrow interpretations of the protections guaranteed by federal disability rights laws.’’

Extend that approach to rights, generally, and you can see how the appointment of Gorsuch to the Supreme Court has real-world consequences for all Americans, not only those with disabilities. His first instinct is to contract rights, not expand them, no matter how vulnerable the person seeking legal redress.

At a minimum, that’s disturbing. To those who think of the law as a crucial tool for protecting the powerless, it’s disqualifying.

Joan Vennochi can be reached at vennochi@globe.com. Follow her on Twitter @Joan_Vennochi.