Emil Guillermo: Getting justice could be even harder with Judge Gorsuch on the Supreme Court
March 21, 2017 9:14 PM
We already know how hard it is to get justice in America. It might get even harder.
In my AALDEF podcast
, I talk to two Asian American professors who have filed a discrimination suit against the University of Michigan.
The professors filed in Michigan state court. But where federal laws are concerned, anyone seeking justice has to be concerned with Neil Gorsuch.
So far, he's the odds-on favorite to become the justice who breaks the current 4-4 tie that exists in the High Court.
Given that Democrats don't have the votes in the Senate to deny Gorsuch's bid to the Supreme Court, it makes his confirmation hearings more like an epic uphill battle.
Much harder than getting Donald Trump to stop tweet-lying.
If you caught any of it on TV, then you know the Trump pick just had to smile and play a folksy Jimmy Stewart-type.
Unwilling to say anything on issues he may have to rule on, he played dodgeball at the highest level.
On hot button issues like abortion, Gorsuch did say Roe v. Wade is a precedent and that he respects precedent. But he added: "I'm not in a position to tell you whether I'd personally like or dislike any precedent. That's not relevant to my job."
When California's Sen. Dianne Feinstein asked if Roe was a "super precedent," Gorsuch would only say, "It has been reaffirmed many times."
But later, when asked what he'd do if Trump had asked him to rule against Roe, Gorsuch seemed so principled: "I would've walked out the door. It's not what judges do."
So was it a litmus test on abortion? Maybe? Given his stonewall answers to serious questions, it was as good as we got.
From the hearings so far, this is what we've learned about Gorsuch: He said he's human, that he puts his ego aside, and as a judge, he has "one client, it's the law."
He also tried to be funny, in a charming, folksy way. Given how serious he is and the seriousness of the issues he must opine on, anything he says that's slightly less than 100 percent serious deserves at least a chortle.
Not a belly laugh. A chortle.
"We're all human beings. I get that," said Gorsuch. "I'm not an algorithm, although I think eBay is trying."
See what I mean? A chortle.
So he's not all that funny.
And, as it turns out, not all that human either.
Just ask the family of the late Grace Hwang.
WHAT GORSUCH DID TO GRACE HWANG
Hwang, an immigrant from Taiwan who capped a long career in corporate law by becoming a university professor at Kansas State, was also a much-loved board member of AALDEF
After a nearly ten-year struggle with cancer, she died last year at age 60.
In an opinion piece that ran in the San Francisco Chronicle
on March 14, the Hwang family talked about how Grace continued to work through her illnesses and treatment.
Even when it was found she had leukemia, Grace continued teaching from her hospital bed.
After a six-month paid leave to deal with her illness, she wanted to go back to work. Her family said due to a flu epidemic on campus, Grace had asked that her leave be extended.
But Kansas State rejected the idea and said she couldn't work from home.
Grace sued the school, claiming the university violated the law requiring an accommodation for her disability.
With her job and life on the line, Grace took the matter to the 10th Circuit and encountered Judge Gorsuch.
In May 2014, Gorsuch wrote the opinion siding with the school and ruled that the purpose of federal law was "not to turn employers into safety net providers for those who cannot work," and that the six months' leave she already had received was "more than sufficient."
So much for Gorsuch the human being.
At the hearing Sen. Mike Lee (R-Utah) brought up the case.
Here's Gorsuch's response:
I can't remember if it was Kansas or Kansas State, she was asking for another six months off and the university said no, and she sued under the Rehabilitation Act, which prescribes that reasonable accommodations must be provided to workers to perform their essential job functions. But to prevail they have to show they can perform their essential job functions. It was undisputed in that case that she just couldn't, through no fault of their own. And the district court said that's just not a claim under the Rehabilitation Act. Maybe for breach of contract or something else, not under federal statutory law, that's my recollection sitting here.
Undisputed that she couldn't work? Not according to the Hwang family, who still claim Grace was able to work if she had been allowed to do so from home.
The family called Gorsuch's ruling a "callous disregard for Grace and her condition."
And it's not an isolated case.
Several senators brought up the TransAm Trucking case, also known as the "frozen trucker" case, in which driver Alphonse Maddin abandoned his truck in freezing conditions and risked hypothermia to get gas. He was fired by his company for disobeying orders.
Maddin sued and won in the 10th Circuit; there was one dissenter.
Gorsuch found for the company, which astonished Sen. Al Franken (D-MN).
"I made a career in identifying absurdity," said Franken, who laid out the case in detail at the hearing. "It makes me question your judgment."
It was one of the few times Gorsuch seemed bothered.
The rest of the time, it was softballs like the ones thrown to him by that fun-loving guy, Sen. Ted Cruz (R-Texas). He asked Gorsuch about his love of the rodeo and its practice of "mutton busting," where children and animals are abused for kicks.
Guns? Abortion? It was that mutton busting question that was more revealing than we know. Terrorizing kids and woolly sheep? The human that is Gorsuch just couldn't stop talking about that.
That and his judge's black polyester robe, his symbol of his commoner's touch.
Still, there was just enough in his past opinions to paint an unflattering picture.
Here's a judge who has easily betrayed the common man and woman seeking justice from the law.
Just ask the frozen trucker and the family of Grace Hwang.
PROFESSORS SUE UNIVERSITY OF MICHIGAN FOR DISCRIMINATION
This brings us back to our podcast episode involving two married Asian American professors, Scott Kurashige and Emily Lawsin, who filed a discrimination suit against the University of Michigan in December that was just made public this month.
Kurashige was a full professor with tenure, and director of the Asian Pacific Islander American Studies program until he was fired in 2013 after he exposed discriminatory patterns in faculty hiring and student admissions at Michigan.
Lawsin was a senior lecturer, who was on leave caring for a Down syndrome child recovering from open heart surgery when she received a layoff notice. She fought it and is still on staff, but has been barred from teaching.
The lawsuit cites violations of Michigan's Elliott-Larsen Civil Rights Act and the state's Persons with Disabilities Civil Rights Act.
Discrimination cases are among the most difficult to win in these times. In this interview, Kurashige and Lawsin spoke about their case exclusively to Emil Amok's Takeout.
Listen to the new podcast interview with Scott Kurashige and Emily Lawsin here
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Emil Guillermo is an independent journalist/commentator.Updates at www.amok.com. Follow Emil on Twitter, and like his Facebook page.The views expressed in his blog do not necessarily represent AALDEF's views or policies.
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