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Supreme Court nominee seen favoring employers

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U.S. Supreme Court nominee Neil Gorsuch is expected to rule favorably on many of the knotty issues facing employers if his nomination is approved, based on his prior rulings and judicial philosophy, according to experts.

However, one major issue that may come back to haunt President Donald Trump is that Judge Gorsuch is expected to rule against the widespread use of executive orders, they said. While President Barack Obama was criticized for using his executive orders to bypass Congressional approval of his agenda, President Trump has also freely used that approach since assuming office.

Judge Gorsuch, who has served on the 10 U.S. Circuit Court of Appeals since 2006, is expected to make rulings favorable to employers in cases related to the National Labor Relations Board, disability discrimination and arbitration, among other issues, experts say.

In light of Congressional Democrats’ significant opposition to Judge Gorsuch’s nomination, though, his succession to the seat left vacant since Justice Antonin Scalia’s death last February is not assured.

Experts generally have high praise for Judge Gorsuch.  “He has a very good legal mind,” said Lee F. Johnston, a partner with Dorsey & Whitney L.L.P. in Denver.

He is likely to rule in the same vein as Justice Scalia, with “that type of limited scope of government,” he said. “But I think we will find him for the most part to be a sympathetic ear when it comes to regulations.”

“Overall, he’s a fantastic pick for employers,” said Richard R. Meneghello, a partner at Fisher & Phillips L.L.P. in Portland, Oregon. “He’s got solid, conservative credentials. His prior opinions demonstrate that he seems to recognize the reality of running a business and managing employees.”

Brian Pedrow, a partner with Ballard & Spahr L.L.P. in Philadelphia, said Judge Gorsuch “clearly is going to take a more conservative approach on labor and employment issues, which tends to translate into a pro-employer viewpoint.”

“He honors precedent, which means his decisions should be predictable,” said Mr. Pedrow.  “He doesn’t legislate.”

“He’s not the kind of jurist who’s going to rewrite” the law, said Donna Ferrara, Chicago-based senior vice president and managing director at Arthur J. Gallagher & Co. That could mean good things if a law is favorable to risk managers, she added while noting that business issues aren’t always “black and white, left and right.”

Experts expect him to rule in favor of class action waivers in arbitration agreements between employers and employees.  In January, the Supreme Court granted review to address their legality in NLRB v. Murphy Oil.

Based on Judge Gorsuch’s past precedent, “he would probably rule on the side of upholding” the waivers, said Mr. Pedrow.

Judge Gorsuch held in his 2014 opinion in Grace Hwang v. Kansas State University that an employer is not obligated to provide more than six months’ leave under the Rehabilitation Act.

In affirming a lower court ruling dismissing the case, Judge Gorsuch said, “it perhaps goes without saying” that an employee who cannot perform a job for more than six months “isn’t an employee capable of performing a job’s essential functions and that requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation.”

Experts say based on his 10th Circuit rulings, Judge Gorsuch is expected to rule against the so-called “Chevron Deference.”  This is a principal reflected in the Supreme Court’s 1984 ruling in Chevron US.A. Inc. v. Natural Resources Defense Council, in which the court held that courts should defer to agency interpretations of statutes that mandate they take action unless they are unreasonable.

They point to his August 2016 ruling in Gutierrez-Brizuela v. Lynch, an immigration case, in which Judge Gorsuch said in a concurring opinion, Chevron “tells us we must allow an executive agency to resolve the meaning of any ambiguous statutory provision. In this way, Chevron seems no less than judge-made doctrine for the abdication of the judicial duty.”

Judge Gorsuch is also expected to rule against the widespread use of executive orders, although this may run contrary to President Trump’s own approach.

President Trump “does seem committed to expanding his reach of power,” said Ron Chapman Jr., a shareholder with Ogletree, Deakins, Nash, Smoak & Stewart, P.C. in Dallas.

However, experts also warn against making assumptions about how Judge Gorsuch will be likely to rule. “I don’t think he’s going to be a slam dunk on everything,” said Mr. Johnston. 

“People change when they’re on the Supreme Court,” Ms. Ferrara said, pointing to Justice Earl Warren, who was considered a conservative when he was appointed to the high court by President Dwight D. Eisenhower in 1953, but turned out to be very liberal.

Serving on the high court “changes your view point of view on a lot of things. It’s an extremely heavy responsibility” and “you can’t simply do what your political friends want you to do,” she said.