Franken calls Gorsuch dissent in trucker case ‘absurd’

·Senior Writer

Minnesota Sen. Al Franken recalled his comedic past in a contentious exchange with Supreme Court nominee Neil Gorsuch Tuesday during the judge’s confirmation hearing.

Franken was questioning Gorsuch on the case of Alphonse Maddin, a trucker who was fired after his trailer broke down in subzero temperatures. Gorsuch concluded in a dissent that it wasn’t illegal for the company to fire Maddin for seeking safety, writing that “it might be fair to ask whether TransAm’s decision was a wise or kind one, but it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.”

The Maddin case had been mentioned by a number of Democratic senators during Monday’s hearing, But Franken invoked the story more pointedly and in cinematic detail.

“It is absurd to say that 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,” said Franken, whose past work included an extended tenure at “Saturday Night Live.” “That’s absurd. I had a career in identifying absurdity, and I know it when I see it. And it makes me question your judgment.”

Franken was referencing the plain meaning rule, in which laws are to be interpreted plainly unless doing so would create an absurd result, in which case judges may depart from the rule.

“The Absurdity Doctrine was never brought to the court,” said Gorsuch in response, “and it’s usually applied when there’s a scrivener’s error, not when we just disagree with the policy of the statute.”

A scrivener’s error is a minor mistake, like a typo, in a contract that may be corrected with convincing evidence.

Franken attempted to lay out the case and get Gorsuch to state what he would have done in Maddin’s situation, but Gorsuch declined to answer.

“What he does is unhitches it and goes off in the cab and he comes off after he gets warm so he can be there when it gets repaired,” Franken continued. “He gets fired, and the rest of the judges all go, ‘That’s ridiculous, you can’t fire a guy for doing that.’ There were two safety issues here, the possibility of freezing to death or driving with that rig in a very dangerous way. Which would you have chosen, which would you have done?”

“I don’t know what I would have, and I don’t blame him at all for doing what he did do,” said Gorsuch. “I empathize with him entirely.”

But when pressed, Gorsuch said he didn’t really know what he would have done because “he wasn’t in the man’s shoes.”

That answer didn’t sit well with Franken.

“I would have done exactly what he did. Everybody here would have done exactly what he did. And that’s an easy answer. I think that’s an easy answer; I’m not sure why you had difficulty answering that,” Franken replied.

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