Editorials and Opinion
We all expect better than these 2 Trump judicial nominations (Bangor Daily News [ME], 07/16/17)
Opinion by Mary L. Bonauto: the U.S. Senate will vote on whether to confirm John K. Bush and Damien Schiff to the federal bench. Neither man comes close to these standards, and through speeches, blogging and past legal activities, both have demonstrated hostility toward entire groups of people. Sens. Susan Collins and Angus King should lead the votes against their confirmation and send the message that we all expect better in judicial nominations.
Bush has a long history of offensive actions and writings that exhibit stereotyped thinking and hostility toward women and LGBTQ Americans.... Similarly, Schiff’s blogging and legal career demonstrate that he lacks judicially qualifying characteristics as well, epitomized by his reference to Supreme Court Justice Anthony Kennedy as a “judicial prostitute.” ... It is time to send a message that we Americans want qualified judges who will give everyone a chance based on the facts and the law. One of those vacancies is here in Maine
One of the Biggest Reasons Republicans Stick by Trump: They blocked Obama’s court nominees for years. Now they’re filling those seats, starting a huge shift rightward for the judiciary. (Bloomberg News, 07/10/17)
By Paul Barrett and David Ingold: this congressional pocket veto of Garland, a 64-year-old moderate and chief of the influential U.S. Court of Appeals in Washington, was simply the most public manifestation of a longer-term strategy. After gaining control of the Senate in 2015, Republicans made it their mission to slow-walk Obama’s nominations for the lower courts. This effort contributed to the relatively large backlog of 107 vacancies on trial and intermediate-appellate courts that Trump inherited.... Two White House choices that have infuriated Democrats and could make moderate Republicans queasy are John Bush and Damien Schiff. Both men, who are scheduled for a vote before the Senate Judiciary Committee as soon as next week, have come under fire for hard-right views they’ve expressed as prolific bloggers.
The Most Important Question for Trump Judicial Nominees: How much executive authority do they think the president has? (Slate.com, 07/05/17)
Peter M. Shane: Donald Trump’s outsourcing the selection of federal appellate judges, including Supreme Court Justice Neil A. Gorsuch, to the Federalist Society. ... Michigan Supreme Court Justice Joan Larsen, a nominee to the 6thCircuit, wrote approvingly of a President George W. Bush “signing statement” in which Bush indicated he was not necessarily bound by the anti-torture provisions of a 2005 emergency appropriations act…. there are also some nominees who should be deemed utterly disqualified for lack of judicial temperament and explicit hostility to constitutional rights. Damien M. Schiff, a senior attorney at the Pacific Legal Foundation and nominee for the U.S. Court of Federal Claims, has called Justice Anthony Kennedy “a judicial prostitute.” Writing under the pseudonym G. Morris, attorney John K. Bush, a nominee to the U.S. Court of Appeals for the 6thCircuit, has written inflammatory and demeaning anti-LGBTQ blog posts for an ultraconservative website run by his wife.
Donald Trump and Neil Gorsuch have the right wing thinking big — really big (Slate.com, 07/03/17)
PETER MONTGOMERY AND RIGHT WING WATCH: A primary vehicle for reversing the “great progressive experiment” will be by packing the federal courts with judges committed to a far-right view of the Constitution and laws. Gorsuch was part of Trump’s list of potential justices pre-approved by the Heritage Foundation and the Federalist Society, which has been working for decades to achieve right-wing ideological dominance in the federal judiciary. In 2001, during the first 100 days of the George W. Bush administration, the Federalist Society held a forum on “Rolling Back the New Deal.” While the Obama administration interrupted that effort, a Trump administration and a Republican congressional majority could put it back on track.
[Editorial] Justice Gorsuch Delivers (New York Times, 07/01/17)
"Mitch McConnell ... has already won the biggest fight of all: the theft of a Supreme Court seat from President Obama, the installation of Justice Neil Gorsuch and the preservation of the court’s conservative majority for years to come.... McConnell demolished longstanding Senate tradition and denied a vote to one of the most well-qualified nominees ever: Merrick Garland .... Justice Gorsuch, who was confirmed less than three months ago, has already staked his claim as one of the most conservative members of the court.... The problem is that he’s sitting in the seat that by rights should be occupied by Judge Garland."
Gorsuch proves to be powerful conservative force on high court (The Hill, 06/28/17)
PAUL SCHIFF BERMAN: Elected by a deeply divisive president who had lost the popular vote by a wide margin, his seat was only vacant because Senate Republicans had refused for over a year even to hold hearings on President Obama’s moderate nominee, Merrick Garland. Given those unprecedented circumstances, Gorsuch arguably has an institutional responsibility to be a restrained justice, seeking consensus positions and adhering to mainstream jurisprudential traditions. But three months into what is likely to be many decades on the court, there is little sign of such restraint. Indeed, Justice Gorsuch has already staked out positions in several areas that are more extreme than some of his conservative colleagues on the court.
We weren’t fooled by Gorsuch, and we aren’t fooled by his clones (Medium, 06/28/17)
Lambda Legal Fair Courts Project Fellow Yuvraj Joshi: Supreme Court Justice Neil Gorsuch confirmed this past Monday that he is everything we warned he’d be — opposing equal rights for same-sex couples and eroding the separation between church and state.
Now, Donald Trump is trying to stack the federal courts with far-right Gorsuch clones. Two of them — John K. Bush and Damien Schiff — are soon to be voted on by the Senate.... Like Gorsuch, Bush and Schiff have anti-LGBT records.... We weren’t fooled then, and we aren’t fooled now.
That’s why we are opposing the nominations of John K. Bush and Damien Schiff.
Gorsuch is already pushing the Supreme Court right on religion, guns and gay rights (Los Angeles Times, 06/28/17)
David G. Savage: “There is no such thing as a Republican judge or Democratic judge,” he said more than once. “We just have judges.” But in just his first few weeks on the high court, Justice Gorsuch has shown himself to be a confident conservative activist, urging his colleagues to move the law to the right on religion, gun rights, gay rights and campaign funding.
Justice Gorsuch Wastes No Time Stirring Up Trouble: His dissent in a gay-rights case reads like a rallying cry for conservative resistance. (Bloomberg News, 06/27/17)
Noah Feldman: it’s clear that Gorsuch wants to establish himself as the new leader of the court’s conservative wing -- fast. No opinion is a better indicator than his dissent from the court’s summary reversal in the Arkansas gay adoption case, Pavan v. Smith.... Gorsuch -- with two more votes on his side -- wants more states to refuse to apply Obergefell according to its simple logic. Instead, Gorsuch is inviting state courts, some of them elected in states where gay marriage remains unpopular, to put up barriers to marriage equality.... Gorsuch isn’t on board with Roberts’s commitment to precedent. He’s rabble-rousing.
Op-Ed Gorsuch is the new Scalia, just as Trump promised (Los Angeles Times, 06/27/17)
Richard L. Hasen: The early signs from Justice Neil Gorsuch, who joined the Court in April, show that he will hew to the late Justice Scalia’s brand of jurisprudence, both in his conservatism and his boldness.... In a flurry of orders and opinions issued Monday, Gorsuch went his own way.... there’s little doubt that, like Scalia, conservatives will be able to count on his vote.
A gun-rights dissent signed by Neil Gorsuch proves the NRA got what it paid for (New York Daily News, 06/27/17)
Robyn Thomas and Adam Skaggs: In a dissent from the decision to leave the lower-court opinion in place, Justice Clarence Thomas embraced the extreme vision of the Second Amendment pressed by the gun lobby. And he was joined by Justice Neil Gorsuch, his newest colleague and the nominee for whom the NRA launched a million-dollar ad buy urging his swift confirmation earlier this year.... even the unanimous views of other courts weren't enough to persuade Justices Thomas or Gorsuch.
Neil Gorsuch Is Paying Off For Trump So Far (FiveThirtyEight, 06/26/17)
By Oliver Roeder and Harry Enten: Gorsuch, in fact, may settle to the right of Scalia. In each of the 15 cases he’s weighed in on so far, Gorsuch has sided with the court’s single most conservative member, Justice Clarence Thomas. More than that, he’s joined every concurring opinion that Thomas has issued so far. That is, he didn’t just agree with Thomas on the outcomes of the case but also with the reasoning by which those outcomes were reached.... the cases Gorsuch has seen so far have covered a wide menu of topics
The Courts Have Halted Trump’s Bigoted Policies, But the Senate Wants to Confirm All His Judges (Center for American Progress, 06/12/17)
Billy Corriher and Anisha Singh: Many federal judges will consider these questions of executive power and government discrimination during the next few years, and President Trump could nominate hundreds of judges for lifetime appointments that last decades. ... Michigan Supreme Court Justice Joan Larsen has been nominated to the U.S. Circuit Court of Appeals for the 6th Circuit, and she has a broad view of the president’s authority over national security. ... Justice Larsen, who had been a judge for less than a year before she found herself on President Trump’s list of potential Supreme Court nominees, co-authored a classified OLC brief on whether suspected terrorists can challenge their indefinite detention in court.... Before confirming any of President Trump’s judicial nominees, the Senate must demand to know whether they will rubber-stamp his discriminatory agenda.
The conservative mind has become diseased (Washington Post, 05/25/17)
Michael Gerson, syndicated column: Those conservatives who believe that the confirmation of Justice Neil M. Gorsuch is sufficient justification for the Trump presidency are ignoring Trump’s psychic and moral destruction of the conservative movement and the Republican Party. Clinton, with a small number of changed votes, would have defeated Republicans. But Trump is doing a kind of harm beyond anything Clinton could have done. He is changing the party’s most basic moral and political orientations. He is shaping conservatism in his image and ensuring an eventual defeat more complete, and an eventual exile more prolonged, than Democrats could have dreamed.
Breaking: #SCOTUS Declines Soft Money Case; Thomas and Gorsuch Would Vote to Hear (Election Law Blog, 05/22/17)
Rick Hasen: This also tells us something about Justice Gorsuch. He was not shy at all — not only about being willing to wade into this very controversial area, but about announcing publicly his vote to hear the case (something he did not need to do). It could well be that he will be as conservative as Justice Thomas is in these cases. (Justice Thomas believes all campaign finance laws—including disclosure—should be subject to strict scrutiny and are likely unconstitutional.)
Trump’s Justice: Neil Gorsuch will be the enduring symbol of a disastrous presidency. (Slate.com, 05/17/17)
Mark Joseph Stern: Gorsuch will be around for decades, helping to shape American law. But no matter how long he stays on the bench, his legacy—and his court itself—will be permanently tainted by Trump’s turpitude.
No matter what happened during Trump’s presidency, Gorsuch was destined to go down in history with an asterisk next to his name. The justice assumed a seat Republicans stole from President Barack Obama by refusing to hold hearings, let alone a vote, for Merrick Garland. This unprecedented blockade was an appalling political heist, diminishing the court’s independence in an effort to preserve its conservatism. Anyone who agreed to take this stolen seat was bound to be viewed as illegitimate by a broad swath of the country.
PRESIDENT TRUMP NOMINATES JUDGES EVEN HE COULD LOVE (New Yorker, 05/11/17)
Jeffrey Toobin: “On Monday, President Trump announced his first group of lower-court nominations to the federal bench. The list illustrates how differently Democratic and Republican Presidents have approached the task of making judges: it comes down to ideology versus diversity. ... Republicans since Ronald Reagan have recognized the power of federal judges to move the country in a conservative direction. Trump’s nomination of Neil Gorsuch to the Supreme Court showed that the new President belongs to the same tradition, and his ten judicial nominees—five to the circuit courts of appeals and five to the district courts—reveal that he will continue to use the courts to advance his political agenda.”
How about nixing double-standard on Trump, Obama? (Northwest Arkansas Democrat Gazette, 04/24/17)
Letter to the Editor, Kyle Johnson: So, Mr. Keane thinks it's "way past time for the Democrats and the people to put aside their differences and unite for the betterment of our country." That would have been so nice if Mitch McConnell would have done that very thing when President Obama nominated Justice Merrick Garland to the Supreme Court and Mitch McConnell and the Senate Republicans had simply done their jobs and confirmed him. Justice Garland was no less qualified than Justice Gorsuch. But the Republicans simply wanted to continue to obstruct. Finally, Republicans went "nuclear" to just to get their way.
After years of obstructing judges, Republicans anxious to pack the courts with extremists (Daily Kos, 04/24/17)
Joan McCarter: Senate Republicans used every trick in the parliamentary playbook—and invented a few new ones—to keep President Barack Obama from appointing federal judges. ... the lion's share of the blame for the judicial crisis across the country rests on Mitch McConnell and crew. That's all changed, though, with popular vote loser Donald Trump in office. Here's their chance to pack the courts with ideologues, in the mold of new Supreme Court associate justice Neil Gorsuch.
Letter: Gorsuch was confirmed by a shabby political maneuver Republicans will regret (TCPalm.com, 04/21/17)
Milton Weiss: Judge Neil Gorsuch has been confirmed ... the seat he is filling is not "the Scalia seat" but the one stolen by Republicans from its rightful occupant, Judge Merrick Garland. Through a shameful political maneuver, President Obama's nominee was not even given the courtesy of a Senate hearing, much less a vote. Instead we have Neil Gorsuch, the darling of the right-wing Federalist Society, the Heritage Foundation, the Koch Brothers, and other big money corporate interests. ... The shabby Republican political trick of refusing to consider President Obama's nominee for the last year of the Obama presidency, coupled with the nuclear option employed to break the Democratic filibuster will have significant future consequences. ... The day will come when Republicans will regret their clever but reprehensible action in having stonewalled the nomination of Judge Garland and in so doing damaged the reputation and future functioning of the United States Senate.
Commentary, Chris Carlson: Idaho will regret 'nuclear option' (Lewiston Tribune [ID], 04/21/17)
"For the most recent example of this unintended consequence of not thinking through a matter, we have Idaho's senior U.S. Sen. Mike Crapo, a Harvard law product, no less, to thank.
In going along with his party in rationalizing not even holding a hearing on President Barack Obama's nomination of U.S. Court of Appeals District of Columbia Circuit Chief Judge Merrick Garland, one of Crapo's expressed reasons was a perception on his part that Garland was weak on Second Amendment rights.
In voting to secure Court of Appeals 10th Circuit Judge Neil Gorsuch's nomination by President Donald Trump, Crapo joined his majority Republican colleagues in doing away with the requirement that 60 votes is needed to end a filibuster. That they don't see this as a precedent that will be invoked with regard to legislation sooner rather than later is stunning.
Without the ability to hold up the process by filibuster, defenders of the Second Amendment are going to discover they have lost their greatest aid. In Crapo's case, it is so ironic that he invoked Garland's perceived weakness on gun rights only to turn around and vote for the "nuclear option," which literally shatters Second Amendment protections.
All it will take will be for the Democrats to recapture the Senate (which will happen sooner or later), then do away with allowing filibusters on legislation, then ram urban-oriented legislation down the throats of small states and, in particular, Western states."
Printed Letter: Neil Gorsuch clearly lacks sense of justice (Daily Sentinel [CO], 04/21/17)
Rudolph J. Textor: The most striking disqualifying element of Neil M. Gorsuch’s character is that he has no sense of, and no interest in, justice.
If he did, he would have publicly stated that Merrick B. Garland was the legitimate candidate for the recent Supreme Court justice vacancy. Additionally, he would have publicly repudiated the past 13 months of vicious Republican Party machinations by which his illegitimate nomination and installation were engineered.
[Editorial] Neil Gorsuch and the State’s Power to Kill (New York Times, 04/21/17)
"In short, the first significant decision by Justice Gorsuch, who was sworn in to office less than two weeks ago, was the most consequential any justice can make — to approve a man’s killing by the state.
That man, like so many others condemned to die around the country, was a walking catalog of reasons the American death penalty is a travesty. Evidence that Mr. Lee was intellectually disabled and suffered from fetal alcohol syndrome was never introduced into court, mainly because he had egregiously bad representation.... That 4-to-4 split effectively gave the deciding vote over Mr. Lee’s life to Justice Gorsuch, sitting in a seat that by all rights should be occupied not by him but by President Barack Obama’s doomed nominee, Merrick Garland.
During his confirmation hearings, Justice Gorsuch talked a lot about his respect for the rule of law, and the importance of sticking to the plain text of the Constitution and of statutes. But he didn’t have to rewrite the Eighth Amendment to see, as Justice Breyer did, that Mr. Lee’s case exemplified “how the arbitrary nature of the death penalty system, as presently administered, runs contrary to the very purpose of a ‘rule of law.’ ”
Neil Gorsuch held the power of life and death in his hands Thursday night. His choice led to Ledell Lee’s execution, and gave the nation an early, and troubling, look into the mind-set of the high court’s newest member.
Clive McFarlane: Will of the people a relative concept? (Telegram & Gazette [MA], 04/21/17)
"That obstructionism culminated in these lawmakers denying Mr. Obama his constitutional obligation to appoint Judge Merrick Garland of the Washington D.C. Circuit to the U.S. Supreme Court following the untimely death of Associate Justice Antonin Scalia.
Republicans claimed that their 14-month strategy to block Judge Garland’s nomination was to let the will of the people speak during the 2016 elections. Of course, a combined 135.4 million people voted to elect Mr. Obama in 2008 (69.5 million) and to re-elect him in 2012 (65.9 million).
Donald Trump captured the White House with fewer than 63 million of the popular vote in 2016 (some two million fewer than his Democratic opponent Hillary Clinton), but according to the logic of the Republicans, Mr. Trump’s total is a better measure of the people’s will."
McConnell further divided Senate (Missoulian [MT], 04/20/17)
Chuck Aker, Letter to the Editor: I am disappointed in U.S. Sen. Mitch McConnell! ... McConnell started this battle when he would not allow the Senate to reject or confirm President Obama’s candidate for the Supreme Court. McConnell was more interested in further dividing the Senate, rather than allowing senators to work as statesmen/women. McConnell is not a statesman and his action invoking the nuclear option on April 6 has further created a Senate divided. McConnell has misused his Senate majority power and needs to be replaced.
Letter: Never forget the name Merrick Garland (Santa Cruz Sentinel [CA], 04/19/17)
Ronald T. Beebe: Now we have a Thief Justice, sitting in the stolen Supreme Court seat that should rightly have gone to Merrick Garland. Let us never forget his name, Merrick Garland. As for the new guy, don’t mention his name at all. For the rest of his life always refer to him as the Thief Justice and everyone will know exactly who you are talking about.
Justice Gorsuch and the Failure of the Senate (American Constitution Society Blog, 04/18/17)
Jim Brosnahan, Guest Post: Nothing in what now-Justice Gorsuch testified to or what the ten million dollars in TV ads supporting him said gave the slightest assurance he will uphold the Constitution against this president.... what should be the standards for Supreme Court nominees?... First, being in the habit of applying reasonable doubt about the proper outcome of any matter as the case is first addressed....Second, a talent and love for both induction and deduction. ... Thirdly, an empathetic sense of the effect of a ruling on persons negatively impacted by it. ... Justice Gorsuch struck out on all three of my criteria.
Letter on nuclear option: How it happened (Wichita Eagle [KS] , 04/18/17)
Wayne Powers: After five years of obstruction, including 79 of Obama’s appointments having been blocked, Sen. Harry Reid, D-Nev., changed the rules of the Senate to require 51 votes instead of 60 for judges to be confirmed, not including Supreme Court justices.
Then Justice Antonin Scalia died, ...Immediately McConnell said there was not going to be an Obama Supreme Court nominee brought to the floor for a vote. Reason: He was in the last year of his presidency. Nowhere in the Constitution is this mentioned.
Obama nominates Merrick Garland, a judge who had been confirmed by a large, bipartisan margin ... And then President Trump nominated Neil Gorsuch. Democrats, possibly stinging from the treatment given by the Republicans to Obama’s nominee, did not get on board. So on April 6, McConnell launched the bomb that brought down the “greatest deliberative body in the world.”