By Kelleigh Nelson:
The drama being played out over Neil Gorsuch’s confirmation hearing is just that – drama…
The justices that I’m going to appoint will be pro-life. They will have a conservative bent. They will be protecting the Second Amendment. They are great scholars in all cases, and they’re people of tremendous respect. They will interpret the Constitution the way the founders wanted it interpreted. And I believe that’s very, very important. — President Trump
Who Chose the List of Judges?
Outside advisers and Trump’s campaign-turned-transition legal staff chose the list of judges for the Supreme Court. The President had first asked to meet with Leonard Leo, the Federalist Society’s executive Vice President, in the spring of 2016 when he sought input from conservative groups, including the Heritage Foundation, on building a list of potential Supreme Court nominees he would release in a bid to quell conservatives worries about pro-life.
One has to wonder who steered our president to the Federalist Society and the Heritage Foundation, both of whom are in the pro-abortion camp, and are funded heavily by pro-abortion advocates. (See the links)
These two organizations eventually produced a list of 21 potential Supreme Court nominees — including Gorsuch — and within days of Trump’s electoral victory, the list had whittled down to just six.
It was then that Trump gathered Leo and his senior staff — including his Attorney General nominee Sen. Jeff Sessions, and his top advisers, Kellyanne Conway, Steve Bannon and Reince Priebus — and told them what he really wanted in a nominee, a source who was in the meeting said. Don McGahn, now White House Counsel, was not at that specific meeting, but led the process of vetting and helping Trump select a nominee. McGahn was chief counsel for the National Republican Congressional Committee from 1999 to 2008, and was nominated to the Federal Election Commission in 2008 by George W. Bush and served in that role until 2013.
Only the final four justices received a private audience with the president-elect, following a months-long vetting process led in part by his campaign-turned-transition’s legal staff and outside advisers, including Leonard Leo of the Federalist Society.
* Gorsuch Rulings Against Disabled
It appears that Judge Gorsuch has repeatedly ruled against the rights of disabled students, but that doesn’t mean that his rulings aren’t legally right. The Judge has authored a handful of opinions limiting the ability of disabled students to seek protection under the Americans with Disabilities Act and the Individuals with Disabilities Education Act (IDEA). One is now in the Supreme Court.
The case involves Endrew F., an autistic fifth grade student, who was placed in private school because his parents believed his public-school education was inadequate. His parents sued for reimbursement of Endrew’s private school tuition and related expenses pursuant to the Individuals with Disabilities Act (IDEA). The private school costs $70,000 annually.
IDEA provides that if a free public school cannot meet the educational needs of a disabled student, the student’s parents may enroll their child in a private school and seek reimbursement for tuition and related expenses.
This case first went to an Administrative Law Judge (ALJ) for review. The ALJ rejected Endrew’s parent’s request for reimbursement concluding that Endrew’s public school had provided him with “free appropriate public education” (FAPE) as required by the IDEA. The district court affirmed the ALJ’s ruling and held that Endrew’s parents failed to meet their burden to prove that Endrew was not provided with FAPE. The U.S. Court of Appeals for the Tenth Circuit affirmed.
Personally, I cannot see where school districts could possibly afford to fund these outside facilities when the parents are not happy with what is offered, and their claim is truly subjective…who would decide if the child is making progress to his ability or not. And how high would real estate taxes have to go to fund these outside schools? Nevertheless, it is now before the Supreme Court…
Who Invented “de minimis?”
The family had argued in the petition they submitted to the U.S. Supreme Court that the intent of the IDEA was to provide a meaningful education to disabled students, not simply a “just-above-trivial” or “de minimis” benefit.
None of the Justices had heard of the term, “de minimis,” and actually asked where it had come from. “What’s the origin of this phrase, ‘More than de minimis’? Who thought this up?” asked Justice Samuel Alito. The law generally defines “de minimis” as being so small as to be legally insignificant.
Neal Katyal, the appellate attorney, who is representing the Colorado school district in the dispute, said the “de minimis” standard was developed over time by the lower courts. But the judge who was key to advancing the standard is Neil Gorsuch. Gorsuch picked the phrase “out of the blue,” said Jack Robinson, the Colorado lawyer representing the child at the center of the current case.
This is a phrase that could undercut protections for students with disabilities across the country. If upheld, the standard would reduce the educational benefits those children are promised under the federal IDEA.
Endrew F. v. Douglas County School District
Judge Gorsuch used “merely … more than de minimis” in a 2008 ruling. While it was not the first time that phrase was applied to the IDEA, a number of courts have found the law demands greater help for students with disabilities.
Gorsuch’s decision in the U.S. Court of Appeals for the 10th Circuit is the touchstone for Endrew F. v. Douglas County School District, the case the justices heard in January and will likely decide by the end of June.
IDEA, as interpreted by Rowley, required States to provide “merely more than de minimis” in providing “some educational benefit” to students under the IDEA. The Individualized Education Program (IEP) that the school district had provided Endrew had been adequate under the standard, 37 hours of special-ed services per week.
The problem with this is the new costs which Attorney Fisher’s proposed standard might impose on school districts nationwide by requiring them to provide additional services. Even the Justices voiced their worry about the cost.
There are many problems with IDEA, and it needs a rewrite or dissolution, but there is also a duty to the children for the public school to try to provide them with an education, despite their disabilities, which will advance them academically insofar as their disability will allow, again, subjective as to their abilities.
Let’s look at some other Gorsuch rulings. Several past cases stand out. We’d actually have to read each case to determine if the Judge was following the law to precision or if there is a lack of compassion on his part.
Gorsuch Ruling on Grace Hwang
One is the case of Assistant Professor Grace Hwang who worked at Kansas State University – with great success – for 15 years. After a cancer diagnosis, she requested and received a six-month leave of absence covering the fall 2009 semester while she recovered from a bone marrow transplant. She was ready to return to work, but a flu epidemic erupted, and she asked for more time, and the ability to work from home until the epidemic passed as she knew the flu could be dangerous to her compromised immune system. The school wouldn’t extend her six-month sick leave, she lost her job and she couldn’t get rehired. She sued for discrimination based on disability.
In his ruling, Judge Gorsuch asserted that “showing up” was an essential job function and opined that the Rehabilitation Act should not “turn employers into safety net providers for those who cannot work.” The former professor and attorney died last year.
Gorsuch Ruling on Alphonse Maddin
Alphonse Maddin, a commercial truck driver for TransAm Trucking, was halfway through Illinois on a minus 27-degree night in 2009 when the brakes on his trailer froze. Expecting quick assistance, he called his employer. Three hours later, the temperature gauge in the cab with the broken heater read minus-7 degrees; his feet were numb, his speech slurred and his breathing labored. He called TransAm Trucking again; their recommendation was, “Hang in there.”
Maddin slowly detached the trailer from his truck and decided to drive to safety. He notified his employer, who ordered him to stay put or drag his trailer. Fearing for his life, he left to seek help and was eventually able to return to the cargo and finish the haul. TransAm Trucking subsequently fired Maddin for disobeying orders.
After a seven-year legal battle, the courts eventually found that TransAm Trucking had unlawfully terminated Alphonse. The only judge who dissented? Supreme Court Nominee Judge Neil Gorsuch.
The TransAm Trucking case is just one in a series of rulings from Judge Gorsuch that demonstrate pro-corporate sympathies form the core of his judicial philosophy.
Gorsuch Ruling on Compass Environmental
Consider another case in which Judge Gorsuch was involved, Compass Environmental, Inc. v. OSHRC. The 10th Circuit Court ruled that the employer of a deceased worker had to pay a fine for failing to adequately train its employee. That failure resulted in the employee being electrocuted by high-voltage lines located near his work area. Judge Gorsuch dissented and would have ruled in favor of the employer.
The Rest of the Story
The Denver Post has a number of Judge Gorsuch’s rulings. It would behoove readers to scroll through it, as there are several cases where we would actually cheer the Judge’s decisions.
The Denver Post also reported that Neil Gorsuch often sided with employers (i.e., corporations) in workers’ rights cases. They stated that his fidelity to literal texts can lead to findings that appear to defy common sense, and fairness. Nevertheless, again, the cases would have to be read to come to a full determination on the Judge.
He has sided with employers 21 out of 23 times in disputes over the U.S. pensions and benefits law, the Employee Retirement Income Security Act, (ERISA). In all 21 ERISA cases in which he sided with employers, Gorsuch was with the majority, often including Democrat-appointed judges.
And again, reports revealed that Gorsuch repeatedly ruled against students with disabilities. Even when students have successfully proven that their rights have been violated, Gorsuch has denied them relief in the courts.
See Bazelon Center for Mental Health Law and National Education Association, both of which reveal a troubling trend that could disqualify him from the nation’s highest court, but probably will not. Both reports’ key findings show that Gorsuch has imposed barriers to prevent students from asserting their rights or proving their case in court by requiring extreme pre-conditions for bringing lawsuits.
Gorsuch Will Be Confirmed
Never in my lifetime have I seen so many advertisements for a Supreme Court nominee, and Gorsuch, a term limit CFR member will join two other CFR members on the court, Breyer and Ginsberg. Here is a short tutorial on the CFR.
The first week after his nomination, Neil Gorsuch told a US senator that President Donald Trump’s tweets about the judiciary, i.e., Judge Robard’s restraining order against Trump’s immigration ban, are “demoralizing” and “disheartening.” He also said in his confirmation hearing that “Judges have to “start with a heavy, heavy presumption in favor of precedent in our system,” which is why he loves stare decisis, and will probably never vote to overturn Roe v. Wade. Stare decisis is Latin for “to stand by things decided,” and is the doctrine of precedent.
In today’s confirmation hearing, Schumer asked Gorsuch, “Do you accept” Roe v. Wade? Gorsuch answered, “I accept it as the law of the land, senator, yes.”
One would think that both Democrats and Republicans would be outraged at Judge Gorsuch’s repeated rulings against the disabled, but I believe their primary consideration is if the Judge would overturn Roe v. Wade.
I believe Gorsuch will be confirmed. The theatre being played out by the democrats and some of the left leaning neo-conservative Republicans is just that, theatre for the dumbed down believing masses, who don’t understand the game.
One need only remember that in 2006, when Neil Gorsuch was nominated by George W. Bush, “not a single Democrat opposed his confirmation in 2006,” tweeted Mitch McConnell on February 1st. Both Bush families stated they were pro-choice after they were out of office. It is likely the Democrat Senators knew the families were really pro-choice and thus confirmed their nominee. Here’s the list of the leftists who confirmed him.
The Senators most likely know that Neil Gorsuch is another John Roberts or Kennedy, and is no Antonin Scalia.
* (Editor’s note: The Supreme Court today unanimously overturned the 10th circuit court decision, ruling in favor of higher standards for IDEA.
Related Article: The Pros and Cons of Judge Neil M. Gorsuch
Related Article: Gorsuch Not a Sure Vote in Trump Immigration Ban
Email Kelleigh: Proverbs133@bellsouth.net
© Copyright by Kelleigh Nelson, 2017. All rights reserved.