Theater of the Absurd

Mo

One of the more irritating rituals in our fine Republic is the SCOTUS Senate hearing process. I realize I might be in the minority here, but it strikes me as a rather absurd exercise in theater, in which Senators posture and grandstand over their pet issues while the nominee sits for hours patiently listening to the Senator blather, then answering or avoiding questions usually designed to trap the nominee into saying something damaging. The theory is these hearings provide the public an opportunity to hear directly from the nominee about his judicial philosophy, but in reality, nothing terribly useful comes from these hearings, other than a reminder that we’re governed by a pack of buffoons and lunatics.

Speaking of buffoons, did you see Al Franken’s performance during the Gorsuch hearings? It’s a perfect example of this Theater of the Absurd. Franken spent the better part of six minutes rambling on and on about various Democrat grievances, including Merrick Garland, before Gorsuch was allowed to respond. But Franken started his diatribe with a discussion of Gorsuch's dissent in the infamous “Trucker” case, TransAm Trucking, Inc. v. Administrative Review Board.

Here’s what happened in that case: A truck driver working for TransAm was stranded on the side of the road in winter when the brakes on his trailer froze. He called TransAm for help and was instructed to wait there for help to arrive. He spent a few hours waiting but his heater malfunctioned and he became very cold. At that point, having called dispatch again and told to keep waiting, he decided to unhitch his cab from the trailer and drive to the nearest gas station. TransAm later fired him for disobeying orders and abandoning his goods.

The sole question in the case before the 10th Circuit was whether the trucker “refused to operate” a vehicle out of safety concerns. If so, under the Surface Transportation Assistance Act, he was wrongfully discharged. The Labor Department, which is the agency in charge of administering the STAA, decided that the trucker “refused to operate” the truck out of safety concerns, despite the fact that TransAm instructed him NOT to operate the truck and he, in fact, DID operate the truck against TransAm’s instructions.

I’ve written about the Chevron doctrine before here, but the basic gist is this: If the statute at issue, here the STAA, is ambiguous on its face, the court is supposed to defer to an agency’s reasonable interpretation of the statute. The majority of the court decided that the phrase “refused to operate” was ambiguous and deferred to the Labor Department’s interpretation. Judge Gorsuch wrote a dissent, in which he pointed out, quite reasonably, that under the plain meaning of the phrase “refused to operate,” the trucker did not refuse to operate the truck out of safety concerns but, instead, refused to NOT operate the truck, and did so against his employer’s explicit instructions.

Now, this case is a picture perfect example of one of the problems with the Chevron doctrine. Courts will often bend over backwards to find statutory language ambiguous and then defer to the agency’s interpretation. This effectively delegates the court’s authority to interpret statutes to the agency. The theory behind Chevron is that the agency supposedly has the expertise to deal with the particular area it administers. But this ignores the fact that the court has the expertise to interpret statutes. It’s that activity—statutory interpretation—that is delegated to the agency under Chevron.

In any event, Al Franken and all sorts of other characters on the Left are up in arms about the result under Gorsuch’s dissent that the trucker could be fired for not wanting to freeze “to death!” waiting for help. So, Franken went off during the Gorsuch hearing in a rather pathetic attempt to out-legal the esteemed judge.

Franken didn’t even try to justify the majority’s view that “refused to operate” encompasses a refusal to not operate. Instead, he tried absurdity, which is to be fair one of his specialties, but here not in the way he thinks. Because, in the Left’s view, results of lawsuits are all that matter, Franken tried to argue that the plain language of a statute can be disregarded when it produces an absurd result, such as a trucker getting fired for refusing to freeze to death.

In Franken’s shining, Perry Mason moment, he declared: “I had a career in identifying absurdity and I know it when I see it.” The problem is, as Gorsuch explained, under the law a court can only apply this “absurdity doctrine” to disregard the plain meaning of a statute in cases where there is a typo or “scrivener’s error,” and not when the court simply disagrees with a policy. To which the Senator from Minnesota responded, “When there’s a scribner there?” “No,” Gorsuch replied, “a scrivener’s error.”

At this point, anyone with half a brain would be shaking his head at Franken’s absurdity. But in the Left’s Theater of the Absurd, Franken is a hero for acting as if the law is merely a plaything one manipulates to achieve the desired result, and that courts are allowed to disregard the law when the result would be undesirable. For the rest of us, I think we know absurdity when we see it, Senator Franken.