 |
| Not an Actual Robot. |
Today, President Trump swore Judge Gorsuch into the highest court in the land. The moment was lauded by the right, criticized by the left. I don't care much for the politics of it all. What I do care about is the impact this new judge will have on the application of criminal laws, decisions and procedure going forward.
Part of the job of a
criminal defense attorney is to provide the client with a feasible strategy aimed at an acquittal. The viewpoints and tendencies of the particular judge sitting on the case absolutely informs and shapes that strategy. A winner argument with one judge, may be a loser argument with another. Judge Gorsuch, now firmly implanted on the highest court for life, will be weighing arguments from attorneys and deciding winners and losers. The difference is, of course, that his winners and losers will trickle down into all the state, federal and municipal courts across the country. As such, like any good criminal attorney must do on every case, it is important to assess his viewpoints and tendencies all the same.
What is legal isn't always right, what is right isn't always legal.
Any judge, but especially one on the SCOTUS has to address this paradigm in their own way. Do I apply the law exactly as the legislature has written it? Or do I apply notions of fundamental fairness, constitutional protections, and maybe a little bit of my own original thought to the discussion? I mean, its called a judicial "opinion" for a reason right? Again, I'm not interested in the politics of either judicial philosophy so much as how Judge Gorsuch's views on it will affect people in this country.
One of the more publicized opinions given by Judge Gorsuch is that of
the frozen truck driver. In short, a truck driver, stranded on the side of an Illinois road in freezing weather with frozen trailer brakes and a low fuel tank began to experience what he believed to be hypothermia. His company told him to stay put, or drag the trailer somewhere with frozen breaks. Three hours later, the driver unhooked the trailer and drove off in search of gas. His trucking company later fired him for not following orders.
The 10th Circuit Court found in favor of the truck driver 2-1, however Judge Gorsuch was the lone dissenter. According to Judge Gorsuch, the company had not acted illegally since, even though there is federal law protecting drivers from being fired for refusing to operate their vehicle in a manner they deem unsafe, that law does not apply to this case. In short, he wrote:
"The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not."
While this case was civil, not criminal, it serves and an instance where Judge Gorsuch has applied a strict reading of the federal law. There is no human element applied to the plight of this trucker. The law says X, your particular situation is basically X but not quite, so you're out of luck.
By eschewing the human element of the statute, Judge Gorsuch failed to do precisely the the thing congress intended to achieve by writing it: Protect truck drivers from being forced into deciding between being put in danger of death or being fired. If the court had followed Judge Gorsuch's strict interpretation of that statute, truck drivers would be less safe and employers would have more power over their employees.
In the criminal law context, Judge Gorsuch has sided with the police on many occasions. He sided with a cop who put a 9 year old in a headlock over a stolen iPad. He also declined to provide relief to a guy who, after a trial, got life in prison even though his lawyer told him he had to go to trial, or the he, the lawyer, would quit his case.
So...We're Screwed?
Actually, no. Not really. On the other side of the coin, Judge Gorsuch is on record disagreeing with colleagues who have held that a cop could arrest a school kid for burping in class and that a guy could be held responsible for a breaking an obscure law he didn't even know existed or applied to him. Judge Gorsuch has also indicated that he has a healthy skepticism of a world where the prosecutorial discretion is unquestioned allowing them to use criminal law to pick and choose their targets as they see fit. Add to all this a strong belief in the Fourth Amendment, Judge Gorsuch at least appears to have an open mind to the plight and circumstances faced by those charged with crimes in this country.
We'll see what happens once he actually, you know, rules on a case and writes an opinion. Until then, I will reserve judgment (See what I did there?) as to whether Judge Gorsuch will be good, or bad, for the criminal justice system.
