Attorney for “Frozen Trucker”: Neil Gorsuch May Have Been Most Hostile Judge I’ve Ever Encountered

As confirmation hearings for Supreme Court nominee Neil Gorsuch wrap up and Senate Democrats vow to filibuster his nomination, we look at Gorsuch’s ruling in a case known as the “frozen trucker.” Truck driver Alphonse Maddin was fired after he disobeyed a supervisor and abandoned the trailer that he was driving, because he was on the verge of freezing to death. We speak with Robert Fetter, the attorney who represented Maddin in his wrongful termination lawsuit.

TRANSCRIPT

AMY GOODMAN: We turn to the confirmation hearings for Supreme Court nominee Neil Gorsuch, which wrapped up Thursday on Capitol Hill as Senate Democrats vowed to filibuster his nomination. This is Senate Minority Leader Chuck Schumer.

SEN. CHUCK SCHUMER: The Supreme Court matters a great, great deal. It matters for workers, who want to protect both their lives and their jobs; for employees, who need to be able to seek redress for discrimination; for parents, who want their kids to get a fair shake in the education system. It is with all this in mind that I have come to a decision about the current nominee. After careful deliberation, I have concluded that I cannot support Judge Neil Gorsuch’s nomination to the Supreme Court. His nomination will have a cloture vote. He will have to earn 60 votes for confirmation. My vote will be no, and I urge my colleagues to do the same.

AMY GOODMAN: Senate rules require 60 votes to break a filibuster, meaning Gorsuch would have to earn the support of eight Democrats to overcome the Democratic effort to block his nomination. In return, Republicans have threatened to activate the so-called nuclear option of eliminating the filibuster entirely for Supreme Court nominations.

Throughout this week’s four days of hearings, one of the most contentious issues was Gorsuch’s ruling in a case known as the “frozen trucker.” The case involves truck driver Alphonse Maddin, who was fired after he disobeyed a supervisor and abandoned his tractor-trailer that he was driving, because he was on the verge of freezing to death. This is Maddin speaking at a recent event in Washington, DC.

ALPHONSE MADDIN: In January of 2009, I was working as a commercial truck driver for TransAm Trucking Incorporated of Olathe, Kansas. I was hauling a load of meat through the state of Illinois. After stopping to resolve a discrepancy in the location to refuel, the brakes on the trailer froze. I contacted my employer, and they arranged for a repair unit to come to my location. I expected that help would arrive within an hour.

I awoke three hours later to discover that I could not feel my feet, my skin was burning and cracking, my speech was slurred, and I was having trouble breathing. The temperature that night was roughly 27 degrees Fahrenheit below zero. The heater in the cabin was not producing heat, and the temperature gauge in the truck was reading minus-7 degrees below zero. After informing my employer of my physical condition, they responded by telling me to simply hang in there.

As I sat there physically suffering in the cold, I started having thoughts that I was going to die. My physical condition was fading rapidly. I decided to try to detach the trailer from the truck and drive to safety. When I stepped out of the truck, I was concerned that I may fall, because I was on the verge of passing out. I feared that if I fell, I would not have the strength to stand up, and would die. I walked to the back of the trailer to place a lock on the cargo doors. The distance that I walked to the back of the trailer seemed like an eternity, as my feet absolutely had no feeling at all.

I eventually was able to detach the tractor from the trailer. Before I left, I called my employer to notify them that I had decided to head for shelter. And they ordered me to either drag the trailer or stay put. In my opinion, clearly, their cargo was more important than my life. My employer fired me for disobeying their orders. And I’d like to make it clear that although I detached the tractor from the trailer, I returned, and I completed my job. And I was still fired.

OK, I disputed my termination from TransAm Trucking and ultimately won. This was a seven-year battle. Seven different judges heard my case. One of those judges found against me. That judge was Neil Gorsuch.

AMY GOODMAN: That was Alphonse Maddin. For more, we’re joined by Maddin’s attorney in his wrongful termination lawsuit. Robert Fetter is a labor lawyer. He joins us from Detroit, Michigan.

Bob, welcome to Democracy Now! This is an astounding case. This happened in 2009. As Alphonse Maddin said, this case was heard by seven judges. Only one ruled against him, and that judge was the current Supreme Court nominee, Judge Gorsuch. Can you explain the course that this case took?

ROBERT FETTER: Yeah. Thanks for having me on. This case goes through an administrative proceeding through the Department of Labor. That’s where it starts initially, through an investigation of the Department of Labor, then to a trial before an administrative law judge. The company had appealed our victory at trial to the Administrative Review Board, which found unanimously in our favor. They then appealed to the 10th Circuit, because the trucking company is headquartered in Kansas, which is in the 10th Circuit. And we were assigned a three-judge panel, which included Judge Gorsuch.

AMY GOODMAN: And explain what happened there. The DOL, when he was in the Department of Labor, there were three judges. They all ruled in his favor, that he would — he could be reinstated and get back pay?

ROBERT FETTER: Yeah, the initial judge, who was the trial judge, ruled in his favor. And then the three-judge panel at the Administrative Review Board all ruled in his favor. And two of the three judges on the 10th Circuit ruled in his favor. It seemed like it was a relatively uncomplicated legal issue, up until it got to Judge Gorsuch.

AMY GOODMAN: So, describe that day. You were there in court. When was it? Describe the scene in the courtroom.

ROBERT FETTER: Well, in January of 2016, I traveled from Detroit to Denver to oral — to oral argument before the 10th Circuit. When you appear, you appear all at one time with several cases, and you all get called when your turn comes up. We happened to be the last one of that morning session. And I was watching the judges, because it’s all the same three-judge panel, as to what their demeanor was. And I looked with particular interest with Judge Gorsuch, because I knew he was a very conservative judge. And I watched in most of these cases, which were uncontroversial, and he was seemingly either disinterested or pleasant to the attorneys. But it seemed like that was a stark change when our case was called. Judge Gorsuch was incredibly hostile. As attorneys on appellate panels, you have some judges that are hostile. And I’ve litigated many cases in appellate courts. And he — that stood out, because he may have been the most hostile judge I’ve ever appeared before. In fact, it came back to me, interestingly, when I watched Senator Franken’s questioning of Judge Gorsuch, which some described as hostile. But that’s a similar type of tone that Judge Gorsuch took with me when I was arguing Mr. Maddin’s case.

AMY GOODMAN: You were there with —

ROBERT FETTER: I did not get a —

AMY GOODMAN: You were there with another lawyer, right? From the DOL? You shared the time that you had?

ROBERT FETTER: That’s right. Because the DOL, at that level, once it gets to the 10th Circuit, is actually the party. It was TransAm Trucking v. DOL. I intervened to represent the interests of Mr. Maddin in that case, so I had to split the time with the Department of Labor attorney. I believe there was 20 minutes; we each had 10 minutes. Judge Gorsuch was so hostile to the Department of Labor attorney that in the middle of a question, that Department of Labor attorney essentially conceded the rest of his time to me, indicated that, you know, “I’ve agreed to split my time with Mr. Fetter, and he’ll answer that question, and he can have the rest of my time.” It was so difficult on that Department of Labor attorney, from Judge Gorsuch, that he essentially gave up time that he had in the oral argument, which, as attorneys, on appellate time, you have such little time, you don’t — you don’t normally give it up.