Unions Oppose Gorsuch for High Court

Mark Gruenberg

Mark Gruenberg Editor, Press Associates Union News

The presidents of two big unions, Mary Kay Henry of the Service Employees International Union (SEIU) and Randi Weingarten of the American Federation of Teachers, are taking the lead against Republican President Donald Trump’s nomination of federal appellate judge Neil Gorsuch to the vacant seat on the U.S. Supreme Court. 

National Nurses United is not far behind.

And, as both the unions and independent analysis from Harvard Law School and other sources show, workers and their allies should be concerned if Gorsuch, 49, joins that bench.

That’s because Supreme Court seats are lifetime posts, with justices staying for decades.

Union opposition to Gorsuch began virtually the moment Trump unveiled the judge as his Supreme Court pick on the night of Jan. 31: Members of the AFL-CIO staff headed to an anti-Gorsuch demonstration on the High Court’s plaza. Federation President Richard Trumka said unions would dig further into Gorsuch’s record, but his past rulings are upsetting.

“Judge Gorsuch does not seem to appreciate the issues and challenges facing working families and the importance of upholding and enforcing our rights. 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,” Trumka added. But concern goes far beyond that.

Both Henry and Weingarten, a longtime New York City high school history and civics teacher, said Gorsuch would substitute his own ideology for the U.S. Constitution. And that could spell trouble for workers. And National Nurses United co-president Deborah Burger, RN, urged Dems to filibuster – talk to death – the nomination. Oregon’s Jeff Merkley plans to do so.

Left unsaid: Gorsuch’s confirmation could revive the right wing’s scheme to turn all state and local government offices nationwide into right-to-work havens – an effort that died on a 4-4 tie last year. If Gorsuch lacks an open mind on that and other issues, the High Court seat should stay vacant, AFSCME President Lee Saunders said.

Gorsuch is an open admirer of the late Justice Antonin Scalia, an “originalist” whose death a year ago created the vacancy and that tie. Gorsuch’s originalist stance also means he could try to toss out laws protecting workers, consumers, pro-choice women and others, as the Constitution does not cover their rights, Weingarten and Henry say.

“As any social studies teacher will tell you, the judiciary has always been an equal branch tasked with interpreting our Constitution, protecting our values and serving as a check against any abuse of power by the other branches of our government,” Weingarten explained.

“A president’s job is not to pick someone who will rewrite the Constitution, but rather for him to act in a way that is consistent with the Constitution and nominate someone who honors that fundamental American value.

“Gorsuch’s record raises significant concerns about his ability to be fair and to respect and follow the law rather than his own ideology, including repeatedly taking the side of corporations over consumers and workers,” said Weingarten.

Burger said Gorsuch’s rulings show he’s “consistently hostile to the rights and protections of working people.”

“Gorsuch will only help rig the system even worse against working families and com-munities,” Henry added. ”People could lose the ability to join together at work and have a voice in a union. Grandparents who fought for the right to vote could see that sacred right taken away. Women could find it more difficult to access necessary reproductive healthcare.

“Gorsuch’s record does not demonstrate the depth of commitment to these people, our values or the belief the Constitution protects all of us. Gorsuch holds the extreme view that judges can ignore the agencies that interpret and enforce laws. He’s willing to decimate clean air and water laws and consumer and worker protections from the bench. He consistently rules against workers and for corporations, and against women’s access to reproductive healthcare.”

Legal analysts back Henry’s point about Gorsuch’s willingness to overrule agencies. He’s steeped in one area particularly important to workers: Administrative law.

Administrative law concerns rules and decisions by agencies such as the Labor Depart-ment, its Occupational Safety and Health Administration, its Wage and Hour Division and the National Labor Relations Board. All enforce laws important to workers, including worker rights, equal pay, the minimum wage, overtime pay, and job safety and health.

Right now, unless foes of agency rulings – business and its right wing allies – can show agencies disregard the law, proper procedures, or both, the courts, under the Supreme Court’s 33-year-old Chevron ruling, defer to agency expertise. Gorsuch doesn’t. He’d have courts decide everything, from square one.

His most recent writing on that came in a 2016 decision pitting TransAm Trucking against the Labor Department’s review board, which ruled for a whistleblowing worker the company fired. “In TransAm, the majority denied an employer’s petition for review of a decision” by that board, upholding the whistleblower, Harvard’s OnLabor blog reported.

“In dissent, Judge Gorsuch criticized the majority for relying on Chevron to defer to DOL. He objected both to the fact that the litigants had not raised Chevron themselves and that the majority had determined the statute to be ambiguous, as he believed the statute was clear and that it foreclosed DOL’s interpretation,” the blog reported. 

But Gorsuch “also slammed the” appeals court “majority for looking beyond the text to legislative purpose,” the blog said. Scalia often gave that same reason for invalidating laws.  

Though he now opposes many agency rulings, Gorsuch’s decisions and writings include four cases involving the National Labor Relations Board and he sided with the board in three.  But the NLRB backed the union in only one of the four – and Gorsuch dissented from that one.

In 2014, in a case involving Teamsters Local 455, Gorsuch’s majority opinion sided with the board. The NLRB ruled a firm’s threat to hire scabs during a lockout was illegal, but the lockout itself wasn’t. The board did not award the Teamsters back pay and Gorsuch agreed. He said the Teamsters were wrong in arguing that “a previously lawful lockout becomes unlawful when a company threatens to hire not temporary workers but permanent ones.”

Four years before, in a case involving Laborers Local 578, the board ruled the union broke labor law by forcing the employer involved – who wasn’t named – to fire a worker who refused to pay union dues. Gorsuch sided with the board, though he said he would have ruled differently if the board’s decision wasn’t already in the record.

Gorsuch broke with the board – and his colleagues – who voted a hospital broke labor law by reducing the hours, and the pay, of its pro-Steelworker employees. The board said that when ordering backpay for the workers, it could disregard their interim earnings. The other judges agreed, but Gorsuch didn’t. He said the board “exceeded the boundaries” of labor law.

Firms often take advantage of such interim earnings of workers to cut the amount they must repay illegally disciplined workers after company labor law-breaking.

The fourth case, where Gorsuch sided with the NLRB, was a highly technical lawsuit involving information the Public Service Company of New Mexico did not turn over to its union during a grievance proceeding.

In another key area, Gorsuch – and the Supreme Court -- sided with Hobby Lobby, the infamous firm that used the religious beliefs of its owners to ban woman workers from getting insurance coverage for pregnancy services. They sued for it, citing the Affordable Care Act. The AFL-CIO sided with the woman workers, who lost at the High Court in 2014.

Hobby Lobby puts a sharp point on a string of recent rulings that undermine women’s health and threaten workers,” AFL-CIO Secretary-Treasurer Liz Shuler told the Coalition of Labor Union Women after that decision. Firms could use “religious freedom to gut minimum wage, civil rights and other worker protections,” Shuler warned then. 

Gorsuch is familiar with administrative law not just from his own rulings but from his education and background. His late mother, Anne Gorsuch, was GOP President Ronald Reagan’s first Environmental Protection Agency administrator – and an open foe of her own agency. She also was convicted of contempt of Congress for illegally withholding documents.

Judge “Gorsuch would not bring the change the American people want: his confirmation would result in a Supreme Court that would rule in favor of lawless executive actions, corporate CEOs and extremists to rig our economy and democracy even further against working families. The Senate must reject this nominee,” SEIU’s Henry concluded.  

Posted In: Allied Approaches

Union Matters

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Sam Pizzigati

Sam Pizzigati Editor, Too Much online magazine

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