Neil Gorsuch's confirmation hearing revealed his hidden similarity to Trump
The two appear to be a study in contrasts – but both display a remarkable lack of compassion. Their likeness could serve to justify Democrats’ opposition
On the surface, they could hardly be more different. Neil Gorsuch is known for his intellectual firepower; Donald Trump speaks at the level of a 10-year-old. Gorsuch has literary panache; Trump once referred to the size of his genitalia on a presidential debate stage. Gorsuch is a textualist; Trump makes up his own facts. And at first, it seemed confirmation hearings for Gorsuch’s nomination to be the next justice on the supreme court this week would only serve to heighten these contrasts.
As Trump tweeted angry disinformation in response to the revelation of an FBI investigation into his administration, Gorsuch sat coolly before members of the Senate judiciary committee. He quoted Socrates and reminisced with Ted Cruz about playing ball on the supreme court’s basketball court as young clerks.
Mainly, though, he successfully dodged senators’ questions aimed at, as one put it, determining “who you really are”. He was one of the most evasive nominees in recent memory, but what he did finally reveal had nothing to do with his patently conservative ideology – one thought to be even more staunchly conservative than that of the man he would replace, the late Antonin Scalia. Instead, on display were a set of unmistakably Trumpian attributes that should sound familiar to any close observer of the 2016 presidential election: a cold cognitive empathy coupled with a dearth of compassion.
One of the most revealing moments came on Tuesday as Gorsuch sought to explain his dissent in TransAm Trucking v Administrative Review Board . A focus of Democratic questioning much of the week, it has come to be known as the “frozen trucker” case. In it, Gorsuch sided with TransAm’s decision to fire its employee Alphonse Maddin for disobeying company orders after his truck broke down in subzero temperatures and he began to fear he would freeze to death. After notifying his employer and waiting hours, Maddin unhitched and temporarily abandoned his trailer to seek shelter. The dissenting opinion filed by Gorsuch in effect presented him with what sounds like an inhumane option: leave and be fired or stay and risk freezing.
Senator Al Franken asked Gorsuch what he would have done in those circumstances. “I don’t know what I would have done if I were in his shoes,” Gorsuch replied. “And I don’t blame him at all for a moment for doing what he did do. I empathize with him entirely.”
Empathy is often conflated with sympathy or compassion, but there’s a crucial difference. The latter connote feeling; the first does not. Having empathy, as Gorsuch said he had for Maddin, is morally neutral; it does not mean someone will necessarily help a person in need, only that they understand their situation.
By Maddin’s own account, three hours into waiting for help to arrive, his torso went numb. He couldn’t feel his feet and felt himself “fading”. Gorsuch understood that cognitively. Yet when presented with credible and abundant evidence of the grave risks faced by Maddin, Gorsuch deemed them irrelevant.
He may have empathized with Maddin but that did not lead him to change his legal opinion. What’s unusual here is not Gorsuch’s conservative philosophy or textualist tendencies. It’s not even that he sided with a company over the “little guy”, as Democrats repeatedly said.
It’s that the fact that Maddin might have died sitting there waiting for help at 14-below, if he’d been unwise enough to follow the only option made available by Gorsuch, did not appear to enter into his calculus. He did not seem to care.
“A good judge doesn’t give a whit about politics,” Gorsuch said at one point, a line whose variations would become a mantra of his throughout the week. But Gorsuch’s record and comments suggest he may also believe a good judge does not give a whit about people.
Researchers distinguish between two types of empathy: that of thought, and that of feeling and emotion. In Trump, the split appears remarkably pronounced, playing into an identity biographers point to as the salient feature of his personality. “Trump is a former schoolyard bully who was sent away to military school to learn proper behavior. That schooling obviously failed,” the Trump biographer Harry Hurt III told the Guardian . “Trump has matured, if one can use that term, into a courthouse bully.”
Common sense might seem to suggest bullies have low levels of empathy, but that may not get it quite right. A 2010 study published in Educational Psychology found bullies lack “affective empathy” but not “cognitive empathy”. The finding suggests children had insight into their victims’ psyches but lacked the type of empathy – feeling-based empathy, or compassion – that might have deterred them from hurting others.
Trump’s greatest gift appears to be in this latter realm – the ability to see into the thoughts and concerns of others enabled him to forge a connection with voters no other candidates conjure.
Such a lens could help explain Trump’s ability to win over poor rural white people on the one hand, and willingness to get right to work crafting healthcare legislation that would hurt the very voters who gave him his mandate on the other.
In Gorsuch’s case, his charming political polish, enabled by his self-proclaimed empathy, allows him to respond in kind to emotional lines of questioning.
When Dianne Feinstein questioned him about his views on the right to die – he has opposed assisted suicide and euthanasia – she invoked painful memories of her ailing father imploring her: “Stop this, Dianne, I’m dying,” and close friends pushed to endure when “there was no hope”. Gorsuch responded accordingly.
“We’ve all been through it with family. My heart goes out to you, it does, and I’ve been there with my dad, OK? And others,” he said . “And at some point you want to be left alone. Enough with the poking and the prodding. I want to go home and die in my own bed in the arms of my family,” he went on.
And yet he failed to explain why none of this made a dent in his thinking. (And having written an entire book on the matter, he has clearly thought about it a lot.) In his book, he wrote: “All human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.” Pressed further on questions of extreme pain at the end of life for the terminally ill, Gorsuch tried to draw a line between knowing and intention. “The position I took in the book on that was anything necessary to alleviate pain would be appropriate and acceptable, even if it caused death, not intentionally, but knowingly,” he said. “I drew a line between intent and knowingly.”
What exactly his intent was in making that distinction is hard to know. Especially because a moment later, Gorsuch was back to cognitive empathy. “I have been there. I have been there,” he said. Headlines would suggest it was he , not Feinstein (the person detailing her father’s death and its effect on her) who got emotional. Whether he did or not, his legal position did not change.
Throughout the week, Gorsuch dodged nearly every substantive question by saying he would defer to precedent. But in TransAm Trucking v Administrative Review Board we saw him fight precedent – in this particular case, a legal statute known as Chevron deference – for what appear to be the pettiest of possible reasons. In his remarkably flippant opinion , Gorsuch narrows legal definitions to make them more restrictive, and even at one point compares Maddin’s decision to unhitch his broken trailer from the truck and seek shelter to an employee “using an office computer not for work but to compose the great American novel”.
He goes on to speak dismissively about his colleagues prioritizing what he refers to as “ends as ephemeral and generic as ‘health and safety’.” He adding: “After all, what under the sun, at least at some level of generality, doesn’t relate to ‘health and safety?’”
The language of the decision is in jarring contrast to the tone he adopted throughout the confirmation hearing process: affable, inoffensive, and almost entirely devoid of content. Here, too, Gorsuch is breaking with precedent, according to Justin Wedeking, a political science professor at the University of Kentucky, who has analyzed these hearings as far back as 1955.
“We have not crunched any numbers yet,” Wedeking said, “but it appears Gorsuch has been more hesitant than recent nominees to answer questions in a forthcoming manner, in some cases even refusing to offer a partially qualified answer.” His previous analysis, in a 2010 report co-authored by Dion Farganis, found supreme court picks have become more evasive over time and questions from senators have become more aggressive.
But the trouble with Gorsuch, we learned this week, is not ideology but humanity.
That’s something Maddin, tellingly, has noticed too. “It seemed like an attempt to avoid the human element,” he told the Associated Press of Gorsuch’s dissent in his case. “When you think something that’s a legal matter, that nature and magnitude, I would think that he would have referred to me ... by name. He refers to me simply as a trucker.”
If Democrats choose to filibuster, fight and delay Gorsuch for as long as they can, their biggest justification may not be that his seat was stolen and the moment calls for a moderate, nor because he offered next to no substantive answers this week – it may be because, faced with the very real specter of a compromised president intent on overreaching his powers, he offers worse than no check. In unguarded moments, he offers more of the same.
“I’m not an algorithm,” he said in one such moment, “but I try really hard, and it’s almost like an athlete. It’s something judges practice and hopefully we get better at it with time.”
Judging from his testimony and his record, he needn’t try so hard. Such detachment seems to come naturally.
https://www.theguardian.com/us-news/2017/mar/25/neil-gorsuch-confirmation-hearing-empathy-analysis?utm_source=esp&utm_medium=Email&utm_campaign=GU+Today+USA+-+Collections+2017&utm_term=218969&subid=14230036&CMP=GT_US_collection
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And that is really the same problem Trump and Goursuch share. A lack of compassion. A lack of empathy. A lack of humanity. And a lack of commonsense. They can not think beyond themselves and what and how life and the decisions they make affect them and not how they affect other people. There are far too many case to go into that prove that with Trump, but in cases such as TransAm Trucking v Administrative Review Board . Or on the right to die:
When Dianne Feinstein questioned him about his views on the right to die – he has opposed assisted suicide and euthanasia – she invoked painful memories of her ailing father imploring her: “Stop this, Dianne, I’m dying,” and close friends pushed to endure when “there was no hope”. Gorsuch responded accordingly.
“We’ve all been through it with family. My heart goes out to you, it does, and I’ve been there with my dad, OK? And others,” he said . “And at some point you want to be left alone. Enough with the poking and the prodding. I want to go home and die in my own bed in the arms of my family,” he went on.
However he still opposed. it. He has no compassion. He sticks strictly to the letter of the law, even when doing so doesn't make sense . Even when doing so causes more harm then good . Even when doing so causes, as in the Alphonse Maddin violates the law itself causing it to go into the realm of the absurd . He is a robot. Not a judge!
There is a scene in the great film "The Lion in Winter" where Prince Richard (Anthony Hopkins (in his first movie role) is talking to his mother Queen Eleanor of Aquitaine, where he says; "You're incomplete! The human parts of you are missing!" Well that is exactly the same with Judge Gorsuch and to a much, much, much greater degree with Donald Trump. The human parts of him are missing.
"He sticks strictly to the letter of the law..."
You know that's his job, right? Doing otherwise would be unethical.
... and he is going to be confirmed...
I had to read the trucker opinion twice to understand Gorsuch's position (and the court's for that matter). This has nothing to do with empathy and instead is an exercise in understanding the limit of the law even when the case has emotional aspects.
At the outset, it's important to note that employers may treat its employees as at will and fire them for any reason at all unless there is some law or labor contract that prohibits it. Maddin, the trucker, was driving in sub-zero weather. He missed the fuel station and was running out of gas. He pulled off the road (perhaps to examine a gps) and, by the time he pulled back on the road again, the trailer's brakes had frozen. The trailer is now inoperable so he called for help. The company told him he could either drag the trailer (which is likely illegal or impossible) or he can wait in the cold. He waited for hours in a truck whose heater had malfunctioned. The company told him to wait a bit longer but, fearing that the cold might kill him, he unhitched the trailer and drove off to find gas (seems reasonable to me). Shortly thereafter, help arrived. The company fired Maddin for abandoning the trailer.
Maddin appealed to OSHA claiming that merely reporting the frozen brakes was a complaint under the whistleblower protection act and that he can't be fired for filing a complaint. OSHA did not see reporting frozen brakes as filing a complaint and dismissed the case. Maddin appealed to the department of labor (DOL). DOL focused solely on the company giving Maddin the option of dragging the trailer and construed his refusal as a properly protected activity. (kind of stupid). The company appealed to the court.
The court split. The majority had an obvious problem saying that reporting frozen brakes and filing a complaint were synonymous. But the court found another provision that says that you can't discharge an employee for refusing to operate a vehicle that is unsafe. Gorsuch dissented. Although he stated up front that the company's decision may not have been kind, the issue before the court was whether the activity (abandoning the truck) was protected. Essentially, Gorsuch said that the company gave Maddin two choices: either drag the truck or sit with it and wait for help. If the company had given Maddin only the choice of dragging the truck, he would likely be covered. However, the company told Maddin he could also sit with the truck rather than operate it. Since the company did not require Maddin to put himself at risk by "operating" the truck, giving Maddin the option of freezing to death sitting next to an inoperable truck doesn't involve a protected activity (even if it's a fucked up company decision). To Gorsuch, Maddin's decision to drive off and leave the trailer is outside the protection of the whistleblower protection provisions as written.
This is a perfect example of the tension between a view that a court should do what is just (even if they bend the law) and the view that, if the legislature (or public) thinks the law is unjust as written, then it is up to the legislature to rewrite it not expect the court to read in a protection that is not there. I agree with Gorsuch . . . and I think the company is despicable.
This is a perfect example of the tension between a view that a court should do what is just (even if they bend the law) and the view that, if the legislature (or public) thinks the law is unjust as written, then it is up to the legislature to rewrite it not expect the court to read in a protection that is not there. I agree with Gorsuch . . . and I think the company is despicable.
Good analysis...