It was a mere month ago that Sam Bieler took Ed Whelan to task for his post at The National Review blaming “liberal judicial activism” for the murder of a police officer. To his credit, Whelan retracted his post. There are different views of how law should be interpreted, but vilifying views with which you disagree as the cause of evil, even death, goes beyond dispute into the insane. People commit crimes sometimes. Constitutional interpretation is not to blame.

Yet, the opening day of speechifying by the Senate Judiciary Committee at the confirmation hearing of Tenth Circuit Judge Neil Gorsuch for the United States Supreme Court saw the other team pulling the same crap, latching onto the “frozen truck driver” case as proof of the evil in his heart.

Yet there are other adjectives for Gorsuch’s dissent. Obtuse, callous, elitist,and cruel are contenders. He displays a manner of thinking that might disappoint — if not shock — many of the white, working-class voters who turned out for Trump in November.

The case involved a truck driver whose truck had broken down. He was told to either drive the truck with locked brakes or wait for help. He waited, his cab lacking heat, in the cold. He finally decided to unhitch his load and drive to warmth. He was fired for disobeying his employer’s orders.

This formed the basis of attack for Gorsuch’s “callous” view. It was more than even Elie Mystal could take.

It’s opening day for the Neil Gorsuch confirmation hearings. Today is just opening statements from the Senate Judiciary Committee, and a statement from the nominee. Which means all we’re getting is a bunch of Senators explaining how they’ll vote before the nominee says a damn thing.

Wonderful system we’ve got here.

The problem is justifying one’s outrage when it’s misplaced hatred of losing to Trump taken out on a judge who, even if he wouldn’t be your first choice, is universally acknowledged to be an excellent choice.

Just, it should be noted, as Merrick Garland would have been an excellent choice, even if he too wouldn’t be your first choice. The Senate Republicans did wrong by Garland, about which no reasonable person could disagree, but the Constitution provided no remedy to the intransigence.

When describing Gorsuch’s dissent this morning, Dick Durbin (D-IL) said: “According to [Maddin’s] recollection, it was 14 degrees below. So cold, but not as cold as your dissent, Judge Gorsuch.”

And so the zinger was launched, that Gorsuch would have the truck driver freeze. Except that wasn’t remotely the gist of his dissent.

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.

In other words, the statute failed to protect the driver from being fired for disobeying his employer’s directions.

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.

Elie disagrees with this outcome, as would most people, as the trucker’s decision to save his life seems eminently reasonable under the circumstances. But Gorsuch’s rationale is similarly understandable, that while there should be law to provide the trucker a remedy, there is not, and he cannot create law that Congress has failed to enact because he is a judge, not a lawmaker.

This frames a fundamental disagreement between those who view the textualist as wrong and the “living constitutionalist” as right, that it is left to judges to interpret law to fit desired outcomes regardless of what the law actually says. Some might point to Congress as the institution failing to do its job. Others might point to the courts, as a practical matter, because it’s left to judges to clean up Congress’ mess. That senators attack Gorsuch for his dissent when they failed to enact a law that would remedy the harm might seem disingenuous, but that’s politics.

Elie offers his preference, summed up in his inimitable way:

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

Does the end matter more than the means? To most people, it does, and that includes conservatives who aren’t entirely thrilled with judges who manufacture (or refuse to do so) outcomes they desire when Congress gave them a crack to do so. Then again, there are times when the textual reading of the Constitution produces an outcome that causes the sides to shift, such as Justice Scalia’s Crawford decision on the Confrontation Clause.

The point is that neither side’s theory of legal and constitutional interpretation is inherently good or evil. The question isn’t necessarily resolved by whether you like the outcome, or whether you have some personal belief that your sense of “justice” should prevail, and how you get there isn’t your problem, because “justice” is more important than anything else.

The norms of politics and facts are collapsing around us, which may be a good thing or a nightmare according to your personal values, but that’s not a reason for the norms of the courts, as an institution, to similarly take a dive into the gutter.

You can hate the Republicans for their handling of the Merrick Garland nomination, although that battle was properly fought in the last election. You can disagree, as Elie does, with the textualist approach to statutory and constitutional interpretation, preferring instead that judges interpret law to achieve outcomes consistent with your belief in what constitutes justice.

Just don’t conflate these issues and turn the courts into the cesspool of politics that has produced the last election. Let one institution remain above the fray so it can function to the extent possible. The law has never been capable of providing a remedy to every harm a person can cause another person. It’s not the job of judges to create a solution to fill the gap that the law leaves behind.

If you need to be outraged, be outraged for the right reasons. Judge Gorsuch’s dissent is principled, even if you disagree with it. He no more froze a trucker than liberal judges killed a cop.