7:20pm PT by Jonathan Handel
Hollywood Guilds Silent on Supreme Court Nominee Gorsuch but Management Lawyers Happy
Hollywood unions and guilds uniformly declined or failed to comment Tuesday on President Donald Trump’s nomination of Judge Neil Gorsuch to the Supreme Court, but the AFL-CIO and two national unions attacked the choice as dangerous to working families, while several management-side lawyers said he was likely to favor employers.
An epic fight is expected in the Senate over the nominee, whose competence and academic credentials (Columbia, Harvard Law, Oxford) seem unquestioned, unlike those of a number of Trump’s cabinet picks, but whose approach to the law is far more conservative than that of former President Barack Obama’s nominee, Merrick Garland.
Garland was denied a confirmation hearing by Senate Republican leaders in a bid to preserve the seat for a Justice in the mold of Antonin Scalia, whose death in February 2016 led to the vacancy. They now appear to have succeeded.
“President Trump’s nomination of Judge Gorsuch is a step backwards for every American who wants a good job, the opportunity for a better life for their family, and a real voice in our economy and democracy,” said Mary Kay Henry, president of the two-million member Service Employees International Union. “Judge Gorsuch will only help rig the system even worse against working families and our communities.”
In contrast to the SEIU statement, the AFM (musicians) and its Hollywood local, DGA, IATSE, SAG-AFTRA, WGA East and WGA West all had no comment.
The Communications Workers of America also weighed in, with union president Chris Shelton saying, “CWA opposes the nomination of Judge Gorsuch … [who] has a record of aligning with corporate interests. Working families can’t afford to have Judge Gorsuch making decisions that without doubt will adversely affect our livelihoods and families.”
The AFL-CIO expressed concern as well, but stopped short of opposing the nomination. “Judge Gorsuch does not seem to appreciate the issues and challenges facing working families and the importance of upholding and enforcing our rights,” said Richard Trumka, president of the umbrella organization that encompasses many US unions. ”His rulings to date raise very serious concerns about where he stands on issues like worker health and safety, equal opportunity in the workplace and the ability of agencies to adopt rules to protect workers’ rights. We will be digging deeper into Judge Gorsuch’s record in the days ahead to see if he meets the high standards that working families deserve.”
Key to the SEIU’s criticism is Gorsuch’s approach to judicial review of administrative agency decisions, a dry subject with real-world consequences. “Judge Gorsuch holds the extreme view that judges can ignore the agencies that interpret and enforce laws,” said Henry.
Whether that view is extreme or not is open to question, and it may not matter in the short term, since Trump is likely to stock federal agencies with conservative appointees anyway. Indeed, it may soon be liberals who file suits arguing that agencies have overreached. But at age 49, Gorsuch could remain on the bench for almost half a century, and could block actions by a future Democratic administration.
In any case, two management-side lawyers agreed that Gorsuch wouldn’t necessarily defer to agency decisions — and three felt that he would make management happy.
“[Gorsuch has] been critical of undue judicial deference to administrative agencies, which would be in line with the Trump administration’s approach to federal regulation and would be a welcome relief to employers that dealt with particularly active administrative agencies under the Obama administration," said Dorsey & Whitney partner Ryan Mick, who represents management.
“Employers who were hoping for a Supreme Court pick in the mold of Justice Scalia generally should be pleased with this selection. Judge Gorsuch’s published opinions on employment-related issues tend to favor employers, with many decisions upholding summary judgment for employers,” he added. (Summary judgment makes defendants, such as employers, particularly happy because such rulings prevent an actual trial.)
How has Gorsuch ruled in labor cases? Ballard Spahr partner Steven Suflas, also speaking from the management side, gave two examples: “In one case, he criticized the Obama [National Labor Relations Board] for overreaching its statutory authority in creating new back pay remedies for employer unfair labor practice conduct. In another, he disagreed with a controversial NLRB opinion protecting the rights of a truck driver to ignore company protocols because of perceived unsafe conditions.”
The SEIU offered three, saying that Gorsuch:
* “dissented from a ruling giving a female UPS driver a chance to prove sex discrimination, arguing that she had not provided any evidence she was treated less favorably than her male colleagues despite several of her coworkers testifying that she was treated differently.”
* “dissented from a decision reinstating a truck driver who waited in sub-zero temperatures for hours after his brakes froze. When his torso became numb and he could not feel his feet, he unhitched his trailer and drove his truck to a gas station. Judge Gorsuch would have held that the driver could be fired for leaving the trailer.” This appears to be the same as Suflas’ second example.
* “ruled that a woman lawyer who was fired after she took other employees’ discrimination claims to the boss was not protected against retaliation under anti-discrimination laws.”
The issue regarding agencies, as Collin O'Connor Udell, of counsel at Jackson Lewis, explained, is so-called Chevron deference, which in her words says that “courts must defer to an administrative agency’s interpretation of statutes if the agency is charged with enforcing those statutes — unless those interpretations are not reasonable.”
“[Gorsuch] has described Chevron deference as ‘permitting executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framer’s design,’” continued Udell, who represents companies. “This approach to administrative law and, in the area of labor law, to the interpretations of the National Labor Relations Board, would mark a notable shift in jurisprudence, one that conservatives have sought for a very long time.”
That sounds as wonky as can be, but the issue is the shape of the modern U.S. government, which grew dramatically during Roosevelt’s New Deal and LBJ’s Great Society periods in an attempt to create a social safety net and shape a more just society.
Udell added that Gorsuch’s approach would “be very similar to Justice Scalia’s, so employers can expect textualist and originalist opinions that are generally employer-friendly.”
Suflas had a slightly different perspective, saying that Gorsuch “has been fairly even-handed in his opinions regarding NLRB issues. He has deferred to the Board's expertise in a couple of cases, but was critical of the NLRB in two dissents.”
But in any case, he added, “it appears that [Gorsuch] will be understanding of management's perspective in labor law cases and may bring a measured and healthy skepticism in reviewing some of the Obama NLRB’s more aggressive attempts to expand the scope of union rights.”
2/1/2017 2:12 pm Updated with CWA statement.
2/1/2017 2:31 pm Updated with AFL-CIO statement.