Editor’s Note: Paul Callan is a CNN legal analyst, a former New York City homicide prosecutor and currently is of counsel at the New York law firm of Edelman & Edelman PC, focusing on wrongful conviction and civil rights cases. The opinions expressed in this commentary are his own.

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Paul Callan: Gorsuch's dissent in case of a fired trucker raises questions about judgment

Callan: He should heed Scalia's oft-quoted words: "I'm an originalist and a textualist, not a nut"

CNN  — 

The journey of Judge Neil Gorsuch to fill Antonin Scalia’s seat on the Supreme Court could veer a bit off the road in the skid marks of the “Case of the Frozen Trucker.” This frosty thorn in the side of Gorsuch was recounted Monday by Sen. Dianne Feinstein, who expressed the opinion that the hardhearted judge was not the kind of person who belongs on the Supreme Court.

By all accounts Gorsuch is a brilliant man, respected by his judicial colleagues. His refined intellect and elegant bearing would make him a picture-perfect member of the nation’s highest court. If a movie were made about him in the style of the 1950s, Jimmy Stewart would have been a good choice for the part. Gorsuch holds degrees from Columbia, Harvard Law and even Oxford University. He is an accomplished writer who disdains legalese, often drafting complex opinions in plainspoken, well-crafted prose.

But then there is the pesky matter of that frozen truck driver and Gorsuch’s icy dissent.

The case involves a lawsuit brought by a trucker, Alphonse Maddin, against his former employer, Trans Am Trucking, which found its way to Gorsuch’s current place of employment, the 10th US Circuit Court of Appeals in Colorado.

Here is how the judges who ruled in favor of Maddin describe the facts of the case:

“Alphonse Maddin was employed as a truck driver by … TransAm Trucking. … In January 2009, Maddin was transporting cargo through Illinois when the brakes on his trailer froze because of subzero temperatures. After reporting the problem to TransAm and waiting several hours for a repair truck to arrive, Maddin unhitched his truck from the trailer and drove away, leaving the trailer unattended. He was terminated for abandoning the trailer.”

At 11:17 p.m., Maddin called his emergency into a dispatcher who promised that help would be summoned. Two hours later at 1:18 a.m., Maddin was still waiting for help, but by now his torso and feet were feeling numb from the cold. It seems the heat in the truck wasn’t working properly.

The driver called in again, but this time a dispatcher warned him not to leave the freezing truck. He called the dispatcher again, saying he couldn’t feel his feet and was having trouble breathing. Finally, Maddin unhooked the truck, pulled it 3 feet in front of the trailer and proceeded to call the dispatcher yet again. He was instructed either to drag the trailer with the frozen brakes with him – probably an impossible task – or continue to wait in the freezing cab until help arrived. Maddin ignored the order and drove away with what little gas he had left. For this act of insubordination, he was fired.

Under the rules of the US Department of Labor, a truck driver can’t be fired for refusing to “operate” his vehicle because of “safety concerns.” But in his dissent, Gorsuch didn’t buy the argument that a refusal to “operate” the vehicle was even involved. In fact, he “operated” his truck, driving it to a gas station against company orders that he should have remained with the trailer.

Gorsuch wrote, “A trucker was stranded on the side of the road, late at night, in cold weather, and his trailer brakes were stuck. He called his company for help and someone there gave him two options. He could drag the trailer carrying the company’s goods to its destination (an illegal and maybe sarcastically offered option). Or he could sit and wait for help to arrive (a legal if unpleasant option). The trucker chose None of the Above, deciding instead to unhook the trailer and drive his truck to a gas station. In response, his employer, TransAm, fired him for disobeying orders and abandoning its trailer and goods.

“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.”

Gorsuch was demonstrating his firm belief in the principle that the actual words of a law should be strictly applied by the court. This doctrine, often referred to as textualism, stands for the proposition that it is up to the legislature to make the law and is up to judges to strictly apply the actual words of the law.

Gorsuch maintained that the actual words of the statute in question would only back the driver when he was “operating” both the cab and the trailer as a single unit. Obviously, he couldn’t “operate” the truck and trailer together and drive away for help and warmth because the brakes on the trailer were frozen. The other judges on the 10th Circuit were willing to apply a dollop of common sense and give the driver the benefit of the doubt.

Conservatives such as Gorsuch abhor this vision of the law because they believe it robs the democratically elected legislature of the right to make law in accordance with the will of the electorate. Instead liberal judges “create” their own law with each new case, creating uncertainty about how future judges will handle future cases.

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    The twin brother of textualism in constitutional law is the doctrine of originalism, which holds that when interpreting the Constitution, a judge should stay as close to the “original intent” of the Founding Fathers as possible. But even true believers in originalism have to bend to the reality of changing times on occasion. After all the 13 original states often used punishments such as whippings and displaying criminals in stocks and pillories until the mid-19th century. Today even most originalists would find such punishments to be “cruel and unusual” violations of the US Constitution.

    Gorsuch would be wise to remember the oft oft-quoted words of Scalia, “I’m an originalist and a textualist, not a nut.” Even Scalia probably would have let the truck driver thaw out at the gas station.