Political News

Democrats lose top fighter against Trump's judicial nominees

Posted December 7, 2017 11:48 a.m. EST

— Democratic Sen. Al Franken's grilling of Supreme Court nominee Neil Gorsuch in the so-dubbed "frozen trucker" case may have been the most replayed moment of the televised Senate Judiciary Committee hearings last March. 

It has drawn hundreds of thousands of views on YouTube, and Gorsuch, a sitting judge since April, sarcastically recalled the controversy months later as an episode that made it look like "I just hate truckers." 

Franken's bitter resignation speech on Thursday because of sexual harassment allegations leaves more than an open seat on the Senate Judiciary Committee when Democrats already have few tools to fight Republican President Donald Trump's lifetime-appointments to the federal bench.  

A showman by training, former comedian Franken could distill and dramatize the law, put a witness on the defensive, and represent the opposition in a way that captured publicity. In the stuffy world of judicial nominations, Franken served the Democratic cause as no other ordinary Judiciary Committee member could.  

He was a relentless inquisitor, combining a flair for the dramatic with down-home folksiness. Critics found him more of a tormentor, and Gorsuch in March bristled at his portrayal of the nominee's views.  

More recently, Franken rankled the GOP majority by refusing to endorse a home-state nominee, Minnesota Supreme Court Justice David Stras, for a US appeals court position. In the past, when a senator withheld a so-called "blue-slip" endorsement, the prerogative was honored. Shortly after the first public allegation was made against Franken last month, Judiciary Chairman Chuck Grassley, R-Iowa, spurned Franken's objection and said he would proceed with a hearing on Stras. Trump has said Stras would be a short-lister for any Supreme Court opening. 

The Republican majority already held a powerful hand to push through Trump's judicial nominees. Four years ago, the Senate, then controlled by Democrats, changed longstanding filibuster rules so that judicial nominees could be put to a vote with a simple majority; prior practice had required a supermajority of 60 votes to cut off debate. With current their 52-48 majority, Republicans are able to approve Trump's nominees on their own schedule under party lines. 

Case of the frozen trucker

Franken appeared to relish his Judiciary Committee platform. Perhaps his most memorable public remarks came over Gorsuch's most sensationalized case from tenure on the Denver-based US Court of Appeals for the 10th Circuit. 

It involved a trucker, Alphonse Maddin, whose trailer had broken down in subzero temperatures. The brakes had frozen, and after becoming numb in the cold, Maddin unhitched the rig and left briefly to get warm. His employer, TransAm Trucking, fired him for leaving the trailer. 

As Maddin protested the dismissal, a US appeals court majority sided with the trucker and his assertion that he was covered by federal worker-safety law. Gorsuch dissented, saying the relevant statute forbade Maddin from leaving behind the rig.  

When Gorsuch appeared before the Judiciary Committee in March as Trump's Supreme Court nominee, Franken was ready. After laying out the case with cinematic detail (the sub-zero cold, the driver's likely hypothermia, the supervisor's order to just wait), Franken mocked Gorsuch's dissenting view. He pressed Gorsuch on what he would have done. The nominee resisted answering in any personal vein. 

"What would you have done?" Franken persisted. "I'm asking you a question. Please answer." 

"Senator, I don't know," Gorsuch said. "I wasn't in the man's shoes." 

Franken deemed it "absurd" that a judge would declare a company rightfully fired a trucker for trying to ensure the safety of himself and others on the road. 

"Now I had a career in identifying absurdity," the former "Saturday Night Live" performer said. "And I know it when I see it. And it makes me question your judgment." 

In April, Gorsuch won Senate confirmation, with a vote along partisan lines, and he apparently had the last word at an annual dinner of the Federalist Society in November. 

Describing his limited judicial role in the interpretation of federal law, Gorsuch, according to news reports, referred to three principles: "One, the law is telling me to do something really, really stupid. Two, the law is constitutional and I have no choice but to do that really stupid thing the law requires. And three, when it's done, everyone who's not a lawyer is going to think I just hate truckers."