Before the law comes the human predicament

I know:  we're supposed to be terribly upset by the nomination of Neil Gorsuch, and yes, I am.  Gorsuch reportedly wants to be Antonin Scalia, which to my mind is enough reason to reject his nomination (just as wanting to be Robert Bork was enough reason to reject Bork from the high court).  But Bork was an arrogant prick who doomed his own nomination, and every nominee since has learned the lesson Gorsuch has learned:  say nothing.

Which makes what Sen. Al Franken did at the hearing all that much more delicious:*

It is absurd to say this company is in its rights to fire him because he made the choice of possibly dying from freezing to death, or causing other people to die possibly by driving an unsafe vehicle. That's absurd. Now I had a career in identifying absurdity. And I know it when I see it. And it makes me—you know, it makes me question your judgment.

If you want the details of that case, you can go here.  If you want a good summary, the link above to the Scalia comparison, or the link following will give it to you.  I want to get on to what Gorsuch wrote, which prompted inquiries by Sen. Durbin of Illinois:

It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one. The Department of Labor says that TransAm violated federal law, in particular 49 U.S.C. § 31105(a)(1)(B). But that statute only forbids employers from firing employees who “refuse[] to operate a vehicle” out of safety concerns. And, of course, nothing like that happened here. The trucker in this case wasn’t fired for refusing to operate his vehicle. Indeed, his employer gave him the very option the statute says it must: once he voiced safety concerns, TransAm expressly — and by everyone’s admission — permitted him to sit and remain where he was and wait for help. 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. And there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid. Maybe the Department would like such a law, maybe someday Congress will adorn our federal statute books with such a law. But it isn’t there yet. And it isn’t our job to write one — or to allow the Department to write one in Congress’s place.

In a delightful analysis of that reasoning Elie Mystal writes:

But, for the uninitiated, this is just kind of how conservative judges roll. His argument wasn’t that Maddin should have stayed there and froze to death, his argument is that the law provides no remedy for a trucker who needs to drive away to save his life. That’s a pretty standard conservative-jurist answer to, you know, problems in society.

Victim: I have a problem.
Conservative: Does Congress say I should care?
Victim: Kinda!
Conservative: Not good enough.

Obviously, I disagree with Gorsuch’s reasoning here. I think being forced to sit inside a truck is “operating it,” within the meaning of the statute. But I’m not a fan of this line of attack against his confirmation. The problem with textualists is not that their outcomes are bad (though, usually, they’re terrible), it’s that their reasoning limits the law to the dull reading of the text. Congress, to my mind, shouldn’t have to write a whole new law to specify “drivers cannot be ordered to get hypothermia.” The law is perfectly flexible enough to incorporate a “no-hypothermia” rule without additional acts of Congress.

But that’s my problem with CONSERVATIVES, not with Gorsuch specifically. It’s my problem with their thought process, not the outcome in a specific Gorsuch case where, in point of fact, he lost anyway. No truckers were frozen to death, under Neil Gorsuch’s watch.

It is the "not good enough" in that imagined dialogue that is the key point.  Listening to Gorsuch in the hearings drone on and on about fealty to the law, I couldn't help imagining it as the law in Kafka's parable:  a building the human, the individual, may not enter, but also cannot ignore.  I've read jurisprudence: the philosophy of the law and the application of law by judges and scholars and lawyers.  There is a compelling argument for the majesty, the august otherness, of the law.  That argument stands behind Kafka's parable.  The other argument is for the human, and how the law intersects the human, and serves the human, and even gives way to the human.  Not absolutely; not in all things; but when the law and its preservation is elevated above the human, when the law becomes an absurdity in order to preserve the majesty of the law, when Congress didn't write the law clearly enough to apply to the particular facts of a particular case and the human must be eliminated in order to preserve the sanctity of the law:  then we have a problem.  The best thinkers in jurisprudence, judges and lawyers with experience with the human predicament, always face the friction between the majesty of the law and the messiness of human actions.  They struggle to hold the two in balance. The poorest thinkers, the ones never represented in texts on jurisprudence and thoughtfulness about the law, put ideas like "original intent" and "strict construction" above all else because, frankly, it's easier than thinking.

Gorsuch wants to be Antonin Scalia redux.  The problem there is not just with Antonin Scalia; it is with the understanding of the law Scalia had.  Scalia invented "original intent" as a dodge from considering the human predicament.  He invented it as a way of imposing his own predilections while still sounding like an impartial juror; after all, what is more impartial than upholding what the law is supposed to mean, instead of considering the human problems that always bring the law before the Court.  William Rehnquist was actually more subtle and better grounded in common law history.  He elevated property law above all law; to him it was sacrosanct, the true basis and reason for law.  He actually had some history on his side with that, though to elevate property law as the summa of the law is to ignore tort law altogether.  And tort law is the clearest field where the human predicament and the law face one another, both seeking not stability of property ownership, but justice.  Stability is a noble purpose of the law; after all, it stands against anarchy.  But justice is a nobler purpose, and justice requires making the human problem co-equal to the legal problem.

The problem is not just with Gorsuch.  Yes, Gorsuch elevates the abstract nature of the law away from the lived reality of human beings.  Yes, Gorsuch tramples on human beings in order to preserve the law.  After all, this door was only for you; and now it is being closed forever.  But we have been closing those doors for so long now; we have closed them in the name of equality, and we have closed them in the name of tradition. What justice would ever be confirmed who said she would stand for people instead of the holiness of the law, the sanctity of the Constitution?

The law's majesty and purpose must be preserved against human messiness.   We are all simply trying to find ways to serve that master, while trying to find ways around it if we disagree with the outcomes preferred by Scalia and Gorsuch.  The problem is not with the law, or government; the problem is with how we regard the law and government.

For both sides, the human factor comes in last.  Mostly, we are arguing about where to put the emphasis, not whether these fundamentals that are now accepted, are right or wrong.  Let me illustrate with a political example:

Frank Rich has now joined the ranks of internet yahoos**, swallowing the narrative that Rust Belt boobs and dwellers in Appalachia gave us Donald Trump.  Just as conservatives on the internet (at least) wanted to eliminate California because it went for Clinton, now Rich & Company want to dump Appalachia, in order to more easily rid of us this troublesome Trump.  It's poor reasoning because Appalachia and Rust Belt ignorance didn't elect Donald Trump:  white middle-class college educated people did.  But Frank Rich and most commenters on the internet know white middle class college educated people, so they must find an "other" to blame their problems on.

And therein lies our fundamental problem.

Neil Gorsuch is reportedly a rich man.  He's a product of an Ivy League education, a denizen of D.C. even though he lives now in Colorado.  He doesn't know ordinary people with predicaments like the choice of staying with their trailer and freezing, or driving away to survive, only to lose their job for doing so.  He knows business.  He knows commerce (how else did he get rich?).  He knows ordinary people as abstractions who must be prevented from interfering with the law.

Just as so many liberals know Appalachia only as the place that elected Donald Trump; even if it didn't.  It is so easy to abstract people out of their humanity and make them the enemy, the reason for our discontent, the obstacle to the smoothly running purpose of business or politics.  Neil Gorsuch and his compatriots in the law take seriously Anatole France's irony:  "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."  In that statement they find stability and equality and the proper respect for the law's imperious nature.  But how much different is it to say the poor brought their poverty on themselves, from saying the poor deserve the poverty they are going to suffer under the administration of Donald Trump?

Gorsuch's jurisprudence, his legal philosophy, is reprehensible.  But what difference does that make, if it only depends on whose ox is being gored?

*A fuller accounting of Sen. Franken's questioning of Judge Gorsuch is here, and frankly, well worth reading.

**a narrative so deeply imbedded that even an article challenging it doesn't make a dent in the comments on that article.  Most of the comments agree with Rich's accepted narrative, rather than have that narrative disturbed by facts and analysis.  Honestly, sometimes, the difference between those in power and those out of power is not worth arguing over.