Daily Trumpdate: It’s Neil Gorsuch! Puzder postponed perpetually?

By Robin Shea, Constangy, Brooks, Smith & Prophete, LLP. To see more posts or to learn more about Robin, see Employment & Labor Insider.

It’s Neil Gorsuch! President Trump’s nominee for the Supreme Court was Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit. If you watched the announcement on TV last night, you already know about his impressive credentials. If confirmed, Judge Gorsuch will fill the vacancy created by the death last year of Justice Antonin Scalia, and he’ll be the first Supreme Court Justice to serve with his former mentor, Justice Anthony Kennedy, for whom he clerked. Pretty cool.

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I did a quick scroll through Judge Gorsuch’s decisions in Westlaw last night, and it appears that he has affirmed summary judgment for employers in a lot of Title VII cases but also frequently supports the National Labor Relations Board. In other words, from an employment law standpoint, it doesn’t appear that he is necessarily going to be easy to classify as “pro-employer” or “pro-employee.” Again, all I did was scroll, so I could be wrong.

I did take the time this morning to read the en banc Tenth Circuit Hobby Lobby decision, a case that was ultimately decided by the U.S. Supreme Court. (In Hobby Lobby, the majority on the Tenth Circuit and the Supreme Court found that the federal Religious Freedom Restoration Act applied to privately-held for-profit corporations, and that the plaintiffs could not be forced to provide contraceptive coverage to employees under the Affordable Care Act, in contravention of their sincerely held religious beliefs.)*

*The ACA required employers to provide coverage for all 20 contraceptives approved by the Food and Drug Administration. Sixteen of the contraceptives prevented fertilization, but four prevented implantation of the fertilized ovum. The plaintiffs in Hobby Lobby had a religious objection to providing coverage for the four “implantation” contraceptives, which they considered to be tantamount to abortion.

Judge Gorsuch did not write the majority opinion, but he wrote a concurrence. (Scroll to pdf page 78.) His opinion supports what we’ve been hearing in the news: (1) he seems receptive to the issue of religious freedom and respectful of religion, and (2) he follows the law. Regarding point 2, here is a nice quote from the opinion (emphasis is mine):

The ACA compels [two of the Hobby Lobby plaintiffs] to act. The RFRA says they need not. We are asked to decide which legislative direction controls. The tie-breaker is found not in our own opinions about good policy but in the laws Congress enacted.

I like.

And, of course, I’ll keep you up to date on the confirmation battle that is likely to ensue.Over the next few days, I’ll read more of his employment-related opinions and report on anything that is noteworthy.

Puzder postponed . . . perpetually? Andrew Puzder’s confirmation hearing — most recently scheduled for Tuesday — has been postponed yet again, and this time, no new date has been announced. Mr. Puzder is President Trump’s nominee for Secretary of Labor. Supposedly, his paperwork has either not been completed, or not been completely vetted by the Office of Government Ethics so that his nomination can be submitted to Congress.

UPDATE (2/2/17, 10:11 a.m. EST): Here’s the explanation for the latest delay, from Politico’s Morning Shift:

WHY PUZDER’S HEARING IS DELAYED: George Thompson, a spokesperson for Puzder, told the Associated Press Wednesday that his confirmation got delayed for the fourth time Tuesday because Puzder’s still working to divest holdings in CKE that the Office of Government Ethics judges a conflict of interest. (The fast food industry is a major enforcement target of the Labor Department.) Thompson described the divesting process as “complex.” An aide to Senate HELP Committee Chairman Lamar Alexander said “the committee will not officially notice a confirmation hearing with Mr. Puzder until the committee has received his paperwork from the Office of Government Ethics.” In a statement, Puzder told the AP: “I am fully committed to becoming secretary of Labor and I am looking forward to my hearing.”

Image Credits: Screen shot of @POTUS Twitter page by Robin Shea. 

About Constangy, Brooks, Smith & Prophete, LLP

Constangy, Brooks, Smith & Prophete, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A "Go To" Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, and Top One Hundred Labor Attorneys in the United States, and the firm is top-ranked by the U.S. News & World Report/Best Lawyers Best Law Firms survey. More than 140 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Alabama, California, Florida, Georgia, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, Virginia and Wisconsin. For more information, visit www.constangy.com.