Editorials and Opinion
The Senate Just Confirmed an Anti-Gay Blogger to the Federal Judiciary (Slate.com, 07/20/17)
Mark Joseph Stern: The Trump administration’s assault on LGBTQ rights scored a major victory on Thursday when the Senate confirmed John K. Bush to the powerful 6th U.S. Circuit Court of Appeals. Bush, perhaps Trump’s most controversial nominee to the lower courts, has a long history of making homophobic and sexist comments during his years as an anonymous blogger. Yet every Republican senator (except the absent John McCain) voted to confirm him. ... Bush’s record overflows with offensive, archaic, and bizarre comments, many directed toward women and sexual minorities.... In the coming days, the Senate will also vote on Damien Schiff’s nomination to the U.S. Court of Federal Claims, which considers environmental and regulatory lawsuits. Schiff has written that the Constitution does not bar states from criminalizing homosexuality. He also declared in 2009 that a California law prohibiting bullying wrongly taught “that the homosexual lifestyle is a good, and that homosexual families are the moral equivalent of traditional heterosexual families.” His article was entitled “Teaching ‘Gayness’ in Public Schools.”
No place for bigotry on the bench (Troy Daily News [OH], 07/20/17)
Sen. Sherrod Brown - Contributing Columnist: This week, I took to the Senate Floor to shine a light on the president’s nominee to join the 6th Circuit Court of Appeals, John K. Bush. This man has a clear record of promoting bigotry and discrimination that has no place in our courts, ... We cannot allow the bar to be lowered for what is considered acceptable behavior by members of the federal bench.
Check President Trump (Medium, 07/12/17)
Desiree Tims, League of Conservation Voters: This week, the Senate Judiciary Committee will vote to confirm or deny toxic nominees, John K. Bush and Damien Schiff. ... Some of the 22 judicial nominees for lower courts have egregious views regarding clean air, water, and common sense public health safeguards. This is especially true of Damien Schiff, who Trump nominated to serve on the U.S. Court of Federal Claims ... Schiff stated that “[the] problem with the [EPA] across the board [is] treating American citizens as if the[y] were not American citizens, [but] as if they were [sic] slaves.”
THE LONG GAME: Court Stops Trump & Pruitt From Trashing the Planet—for Now: The latest D.C. Circuit Court decision to halt environmental protection rollbacks shows why Trump’s extreme-right judicial nominees are dangerous in the long run. (Daily Beast, 07/06/17)
Jay Michaelson: the important role that the courts have played in slowing Trump’s actions on immigration, security, and environmental regulations points to the importance of the federal judiciary generally—and to the extreme candidates that Trump has nominated so far. Trump has continued to draw heavily from the wishlist prepared by the Heritage Foundation, tacking hard right from the judicial mainstream.... Trump has gone beyond previously accepted limits, nominating to one appellate court John Bush, a birther who used a pseudonym to blog wingnut-like rants about President Obama, and to another Damien Schiff, who called Justice Anthony Kennedy “a judicial prostitute.” (Schiff has apologized.) And because of unprecedented obstructionism in the previous congress, Trump now faces a record-high number of vacancies and expected vacancies in the federal judiciary: 38 percent over the next four years. … voters should care. As we’ve seen in the last six months, the independent judiciary may be democracy’s last line of defense.
Federal Courts Won’t Save Us if We Don’t Save the Federal Courts: We can’t depend on the Trump administration or on Congress to protect civil rights. So we need to save the courts (Medium, 06/13/17)
The Leadership Conference: As The Leadership Conference has long recognized, the composition of the federal judiciary is a civil and human rights issue of profound importance because federal judges are charged with dispensing justice .... That’s why we fought so hard to block Trump’s Supreme Court nominee, Neil Gorsuch, and why we’re fighting to prevent other extreme Trump rubberstamps from being confirmed to the federal bench. John K. Bush, nominated to serve on the U.S. Court of Appeals for the Sixth Circuit, and Damien M. Schiff, nominated to serve on the U.S. Court of Federal Claims, are both appearing before the Senate Judiciary Committee tomorrow — and neither of them would be the independent and impartial federal judges America needs.
Bush and Schiff have a history of blogging on topics that make them unfit to serve on the federal bench .... There’s one disturbing example after another in AFJ’s reports and in our letters on these and many other issues, like environmental rights, property rights, judicial activism, police misconduct, and voter fraud.
President Trump’s New Nominee Called Justice Kennedy a “Judicial Prostitute” (Justice Watch, 05/26/17)
President Trump has nominated Damien M. Schiff, Senior Attorney at the Pacific Legal Foundation and member of The Federalist Society, for a seat on the U.S. Court of Federal Claims. As noted in his Senate Judiciary Questionnaire, in a series of blog posts on both the Pacific Legal Foundation’s Liberty Blog and his own personal blog entitled Omnia Omnibus, as well as in other writings, Schiff repeatedly demonstrates his extreme views and his unfitness to serve as a judge.
First, Schiff’s writings include personal attacks on the integrity of a sitting Supreme Court justice, advocates, and progressives. This alone demonstrates he lacks the judicial temperament to serve as a judge.
Second, Schiff’s writings demonstrate a blatant disregard for the importance of critical rights and protections relied on by millions of Americans and an extreme devotion to political ideology.
Finally, Schiff, who has devoted his career to weakening environmental laws and other legal protections, has made clear that he believes the role of a judge is not to neutrally apply facts to the law. Rather, he has called for a “reinvigorated constitutional jurisprudence, emanating from the judiciary” that would “overturn precedents upon which many of the unconstitutional excrescences of the New Deal and Great Society eras depend.” In achieving that goal, Schiff has called on President Trump to rescind environmental and regulatory reforms and has stated that OSHA is unconstitutional.
Trump Vetting Extremist Judges to Fill Record Number of Empty Seats (Center for American Progress, 04/27/17)
Billy Corriher: President Donald Trump has a chance to nominate 127 federal judges to seats that are now empty. This is an astounding number of vacancies—amounting to one-seventh of the total federal judiciary and more than twice the number of vacancies that President Barack Obama inherited. The White House is vetting nominees for courts around the country, including extremist nominees from Texas for the 5th U.S. Circuit Court of Appeals, which has four vacant seats.... The administration’s current crop of nominees suggests that Trump will nominate pro-corporate judges who will consistently rule against American workers and the environment.
Judge Gorsuch favors corporate goliaths over small businesses (The Hill, 04/09/17)
Amanda Ballantyne, Main Street Alliance: A closer look at his record suggests some bad news for the "mom and pop" shops struggling to get by; Judge Gorsuch is not their friend. Time and again, he’s favored corporations at the expense of small business owners, their employees and their customers. ... First, Judge Gorsuch could undermine regulations that protect small business owners.... Judge Gorsuch has shown a clear disdain for environmental regulations and has actively worked to weaken them. Weaker environmental regulations, however, jeopardize small businesses’ ability to operate, their security in the future and the confidence of their customers.
Second, Judge Gorsuch has a strong record of corporate favoritism. This stacks the deck even further against small businesses
A Toxic Threat to Justice: Democrats must stop the GOP's Supreme Court salvo from also poisoning lower courts. (U.S. News & World Report, 04/07/17)
Nan Aron, Alliance for Justice: Senate Republicans deploying the so-called nuclear option to confirm Supreme Court nominee Neil Gorsuch marks a sad day in history not only for the Senate, but also for justice.,,, Thanks in large part to GOP stonewalling of judicial nominees under Barack Obama, President Donald Trump already has a whopping 120 lower-court vacancies to fill, 19 on circuit courts. His administration has made clear it intends to appoint younger, conservative ideologues with many years to serve, and to jettison the role of the American Bar Association in evaluating candidates for the bench.... With a fired-up base, Senate Democrats have every reason to prioritize circuit court nominations now. They should insist the president avoid nominating judges whose philosophies are extreme.... The "blue-slip" process is a venerable tradition that gives home-state senators power to say whether nominees from their states will advance. Such tactics should not be abused, but they exist.... Obama regularly consulted with Republican senators on finding the best-qualified judicial nominees.
Bill Price: Sens. Manchin, Capito should vote no on Gorsuch (Gazette) (Charleston Gazette [WV] , 04/06/17)
Bill Price, Sierra Club: Judge Gorsuch appears to be as hostile to citizen enforcement as Scalia, if not more so. On three separate occasions, he has denied access to the courts for environmental groups to federal courts, relying on cramped views of what it takes to establish access to the federal courts. He has written about his disdain for public interest litigation, a dangerous view of the environmental laws that have safeguarded this country’s air, water and wilderness from devastating harms.
On Gorsuch, Senate Should Debate, Deliberate (Jost on Justice: Law & Justice Blog, 04/04/17)
Kenneth Jost: The Senate should not vote this week on the Supreme Court nomination of Judge Neil Gorsuch. ,,, the reason for slowing down the vote is that Senate Republicans owe it to the American people to allow full debate and deliberation on Gorsuch's nomination before sending him to the Supreme Court for what is likely to be 25 years or longer....They will be getting
* A justice who is a threat to reproductive rights, LGBT rights, and workers' and consumers' rights.
* A justice who is a threat to clean air and clean water regulations.
*A justice who would invite a larger role for money in politics by narrowing the power of Congress or state legislatures to limit campaign contributions.
* A justice who could be a pivotal vote for expanding presidential power at a time when the president is a constitutional time-bomb waiting to go off.
* A justice with no record of promoting racial justice or protecting voting rights at a time when those issues tarnish America's claims to liberty and justice for all.
The Government Gorsuch Wants to Undo (New York Times, 04/01/17)
Emily Bazelon & Eric Posner, Op-Ed: Judge Gorsuch embraces a judicial philosophy that would do nothing less than undermine the structure of modern government — including the rules that keep our water clean, regulate the financial markets and protect workers and consumers. In strongly opposing the administrative state, Judge Gorsuch is in the company of incendiary figures like the White House adviser Steve Bannon, who has called for its “deconstruction.”... Schechter Poultry Corp. v. the United States, along with another case decided the same year, are the only instances in which the Supreme Court has ever struck down a federal statute based on this rationale, known as the “nondelegation doctrine.” Schechter Poultry’s stand against executive-branch rule-making proved to be a legal dead end, and for good reason. As the court has recognized over and over, before and since 1935, Congress is a cumbersome body that moves slowly in the best of times, while the economy is an incredibly dynamic system. ... only Justice Clarence Thomas seeks to strip power from the administrative state by undercutting Chevron and even reviving the obsolete and discredited nondelegation doctrine, as he explains in opinions approvingly cited by Judge Gorsuch.
Ken Grossinger: Judge Gorsuch wrong choice for Colorado's working families (Daily Camera [CO] , 03/25/17)
Guest Opinion: for the majority of Coloradans — and Americans — who are everyday working people, Judge Gorsuch's record bodes ill.... throughout his career, Judge Gorsuch has shown a pattern of siding in favor of employers, wealthy corporations and Wall Street — against working families ... He also has voiced support for legal theories that could jeopardize important protections for workers as well as clean air, clean water, and safe food and medicine that each of us relies on every day.... a "no" vote on Judge Gorsuch is the only vote that serves these families.
Maine Voices: Environmental stewards should stand together against Gorsuch: President Trump's nominee opposes the long-standing custom that courts defer to experts in government (Portland Press Herald [ME] , 03/25/17)
Ken Cline: Gorsuch, a federal appellate judge, has a record of extreme positions that proves he is too far outside the mainstream and too hostile to the environment for this critically important position. Gorsuch has been described as more extreme than Scalia, the most anti-environment justice in recent Supreme Court history.
Gorsuch’s judicial philosophy will limit the access of everyday Americans to the courts and prevent agencies like the EPA from doing their job to protect our air, water and health. This is a dangerous view that will favor polluters and industry over the rights of the people.
On at least three separate occasions, Gorsuch has denied access to the courts for environmental groups. Environmental laws without citizen access to the courts to enforce them are a hollow promise. ... We must hold the Senate to that 60-vote threshold..... Collins and King must raise their voices with us and reject Neil Gorsuch
What Neil Gorsuch (Really) Means for the Supreme Court (Esquire, 03/23/17)
Andrew Cohen: He also is every bit the conservative ideologue that his most suspicious critics think he is. ... Gorsuch is going to rule overwhelmingly in favor of conservative causes and principles, just like the man who preceded him, Antonin Scalia. To paraphrase John Roberts: Justice Gorsuch will call balls and strikes all right, just like an umpire, only one team will get almost all of the strikes and the other almost all of the balls. ... he has been chosen for the High Court by the Trump administration specifically because of his politics, as expressed through his work for the Bush administration, his time in private practice, and the jurisprudence he has revealed during his time as a federal appeals court judge. The think tanks and dark money donors who supported his nomination didn't just buy in on him on spec. ... Bad news for environmentalists.... The ideological gulf between Garland and Gorsuch is going to make a difference in the lives of every American today and every person yet to be born here in the next half century or more.
Gorsuch’s big fat lie [print headline "Gorsuch's convenient untruth"] (Washington Post, 03/23/17)
E.J. Dionne Jr., Opinion writer: “There’s no such thing as a Republican judge or a Democratic judge,” Gorsuch said.
Gorsuch, the amiable veteran of many Republican campaigns, is well-placed to know how serious a fib that was. ... The best scholarship shows an increasingly tight fit between the party of the appointing president and how a judge rules. It’s a point made in “The Behavior of Federal Judges ,” by Lee Epstein, William Landes and Judge Richard Posner, and also in research by Neal Devins and Lawrence Baum.... The reason Republicans wouldn’t even let the moderately liberal Garland make his case is that conservatives who regularly denounce “liberal judicial activism” now count on control of the Supreme Court to get results they could never achieve through the democratically elected branches of government.... Gorsuch has done what economic conservatives count on the judges they push onto the courts to do .... conservatives, including Trump, want the court to sweep aside decades of jurisprudence that gave Congress broad authority to legislate civil rights and social reform, along with environmental, worker and consumer protections. Gorsuch good-naturedly evaded nearly every substantive question he was asked because he could not acknowledge that this is why he was there.
Gorsuch’s Legacy, and the Planet’s (New York Times, 03/22/17)
David Leonhardt, Op-Ed columnist: I expect that the climate will end up being a large part of Gorsuch’s legacy if he joins the Supreme Court.
He could be the deciding vote on pollution cases that will come before the court in the near future. Longer term, when the country next has a president who takes climate change seriously, many efforts to fight it are likely to end up before the court.
Gorsuch is extremely conservative, and the best working assumption is that he will be hostile to environmental regulation. But that’s not the only possibility.
How Trump's Supreme Court Pick Quietly Wipes Out Environmental Cases: Green groups may never get their day in court. (Mother Jones, 03/20/17)
Rebecca Leber: Throughout his career, Gorsuch has found creative ways of throwing judicial roadblocks in front of environmental litigation. In many instances, Gorsuch has ruled that environmentalist groups don't have what is called "standing" to bring a case. ... If Gorsuch's logic were applied to other cases, plenty of environmental arguments would be at risk, says Grab. "Judge Gorsuch's approach in this case is potentially worrisome to any organization that might want to challenge an agency's tightening of a regulation as not being comprehensive enough," she notes .... Gorsuch has also attempted to limit the ability of green groups to defend environmental rules in court.
Restoring Judicial Independence (American Constitution Society Blog, 03/15/17)
Caroline Fredrickson: Trump's selection process for a Supreme Court nominee was unprecedented. There are real concerns raised by the litmus tests that the president promised that his judicial nominee has met. Gorsuch’s record on the bench demonstrates a departure from decades of precedent. At the same time, there is information about the judge's time at the Department of Justice that is still unknown despite repeated requests for information. Add to this nomination process the fact that Gorsuch was selected by a president with numerous constitutional challenges that are already being disputed in court.... We need to ensure that senator’s questions are answered, and next week’s confirmation hearing is an important part in restoring transparency.
Guest opinion: Gorsuch no friend of U.S. workers (Billings Gazette [MT,WY], 03/09/17)
Al Ekblad, Montana State AFL-CIO: Working Montanans should be deeply concerned by President Trump’s choice for the U.S. Supreme Court. Federal Appeals Judge Neil Gorsuch’s record shows he’s comfortable using the law to enrich Wall Street bankers and trampling the rights of working people....Gorsuch appears to believe in legal theories that are well outside the mainstream and that would hinder the federal government’s ability to effectively address national problems affecting Americans. If confirmed, he would likely continue to endanger important protections for workers, as well as clean air, water and basic safety regulations for food and medicine. He’s demonstrated he will represent corporate interests over everyday people at a time when America needs a justice who will protect the rights of all of us.
OPINION: Trump’s SCOTUS nominee no friend to working people (Missoulian [MT], 03/07/17)
Al Ekblad, Montana State AFL-CIO: Working Montanans should be deeply concerned by President Trump’s choice for the U.S. Supreme Court seat. Federal Appeals Judge Neil Gorsuch’s record shows he’s comfortable using the law to enrich Wall Street bankers and trampling the rights of working people.... If confirmed, he would likely continue to endanger important protections for workers, as well as clean air, water and basic safety regulations for food and medicine. He’s demonstrated he will represent corporate interests over everyday people at a time when America needs a justice who will protect the rights of all of us.
Pope Francis's American Critics (Commonweal, 03/02/17)
Op-Ed by Anthony Annett: As Zephyr Teachout has argued convincingly, the defining feature about Judge Neil Gorsuch is his ideological predilection for not standing in the way of concentrated corporate power and wealth. This is obviously why he appeals to Trump, but yet again, this particular type of American Catholic is touting him as a judicial Aquinas! (I don’t need to point out that Justice Antonin Scalia was cast from the same mold, and that his death probably saved the Clean Power Plan—which, let us remember, was praised by Pope Francis in some of the first words he uttered in the United States).
Why Gorsuch could lead court in wrong direction (CNN, 03/01/17)
Prof. Richard L. Hasen: keeping the steady course with a conservative replacement for Scalia will be bad enough across a range of topics important to many Americans, from environmental protection to immigration law to the ability of labor unions to collect dues from their members. ... Consider how things will likely get worse in two areas that are the focus of my work, campaign finance and voting rights.... The court with Gorsuch, like a court with Scalia still on it, seems poised to kill off what's left of McCain-Feingold and potentially open the door to candidates taking unlimited contributions from individuals and perhaps even corporations. Things on the voting rights side could get worse as well. ... the simple confirmation of Gorsuch would not restore the status quo. It would keep things moving in the very troubling direction they were going while Scalia was still on the court.
Judge Neil Gorsuch: Likable, but dangerous (The Hill, 02/28/17)
Wade Henderson,The Leadership Conference on Civil and Human Rights: Our Constitution demands that the Senate fully examine the record and judicial philosophy of the nominee. By that measure, the Senate must reject the nomination of Neil Gorsuch.... he lacks the impartiality and independence the American people expect and deserve from the Supreme Court.... As a judge on the federal appeals court, he has shown a consistent favorable treatment of employers and corporate defendants, and a reflexive rejection of workers’ rights claim.... The Chevron doctrine requires deference to federal agencies’ interpretation of ambiguous laws as long as the interpretation is reasonable, which has resulted in the safeguarding of workers’ rights, environmental protection, consumer protections, food safety, and many other protections for people’s health and well-being.
Judge Gorsuch wrote that judges should make these decisions instead of agencies with the relevant expertise, which will likely lead to favoring corporate interests over individual rights.... From workers’ rights to LGBT rights, from protecting students with disabilities to protecting the environment, from voting rights to police misconduct, Judge Gorsuch’s decade-long record demonstrates he is a judge with an agenda. That agenda, unfortunately, is not in the interest of those who need the courts to protect them the most.
Gorsuch must show commitment to a democratic America (Cincinnati Enquirer [OH] , 02/21/17)
Joseph P. Tomain: Garland is also known for his fairness, decency, temperament and commitment to the rule of law. What distinguishes these two nominees is only one thing – politics.... The failure of the Senate to honor its constitutional duty by holding hearings on Garland highlights how politicized the Court is currently.... Can the White House benefit cronies and harm citizens by increasing safety risks and pollution, reducing or eliminating cost savings, and raising costs to consumers? Or can the will of Congress override the administration’s power grab by safeguarding agency action discharged in the public good? These questions will face the Supreme Court.
Where does Gorsuch stand?
OTHER VOICES: Say no to Gorsuch, whose manifesto bodes ill for climate change fight (Las Vegas Sun, 02/21/17)
Billy Corriher: Anyone concerned about the health of our environment should oppose Gorsuch’s nomination. If Gorsuch is confirmed, his approach to reviewing regulations suggests that he could vote to limit the EPA’s ability to address climate change.... Even Justice Antonin Scalia, who Gorsuch would replace, defended Chevron and the need for judges to defer to agency experts.
Conservative Supreme Court justices are only concerned about calling balls and strikes, except when they are striking out (Washington Post, 02/14/17)
Tom Toles, The Washington Post editorial cartoonist's blog: The Clean Air Act defines pollution as a substance emitted into the air that “may reasonably be anticipated to endanger public health or welfare.” But for Justice Samuel A. Alito Jr., this rather stark black-and-white definition is a definition he doesn’t like. ... he manages to overlook the entire — and I mean just about entire — body of scientific work on climate change .... Then he goes on with what apparently he considers compelling logic to say that carbon dioxide can’t be a pollutant because humans produce carbon dioxide naturally, and plants like it! By the same logic, it would not be pollution for people to pipe their toilets directly into lakes and rivers or neighbors’ gardens.
And now we all are supposed to relax and be confident that the next “conservative” high court appointee will also only be showing up to call balls and strikes. After all, it wouldn’t be fair to nominee Neil Gorsuch to expect him to tell us if he understands this portion of the Clean Air Act the same way Alito does, which also is likely to be shared by the president who nominated him.
Because, after all, to preserve the decorum and deference due to Supreme Court nominations, the stability of the climate of planet Earth is not too large a price to pay.
Justice Alito Declares “Carbon Dioxide Is Not a Pollutant” in a Candid, Confused Speech (Slate.com, 02/13/17)
Mark Joseph Stern: Alito aligned himself with conservative judges like Donald Trump’s Supreme Court nominee Neil Gorsuch, who think agencies have been given too much power to legislate.... But then Alito went off the rails.... Alito’s comments here are straight out of the climate change denialist playbook—and were rejected in Massachusetts v. EPA, for good reason. ... There is no textual support for Alito’s assertion that the law was meant to be limited to “soot or smoke.”
But what’s really odd about Alito’s comments on Saturday is that he seems to have forgotten key details of the case.... Those “unelected bureaucrats” at the EPA were refusing to enforce a law passed by the people’s “elected representatives.” And the judiciary stepped in to ensure that the bureaucrats followed the law.... embedded in his fulmination against climate science is a legitimately confused and contradictory legal stance that suggests that, for Alito, the only valid regulations are the ones he agrees with.
The Fate of Environmental Law in a Trump-Era Supreme Court: Given what we know now, those laws will almost inevitably be weakened in ways that are hard to predict (Scientific American, 02/08/17)
Guest blog By John Echeverria: Gorsuch has staked out positions on several crosscutting legal questions that have important implications for environmental law .... Critics of government regulation sometimes seek to apply the so-called nondelegation doctrine, which purportedly limits the power of Congress to make delegations of rule-making authority to administrative agencies. The Supreme Court has upheld nondelegation challenges to congressional enactments in only a handful of cases, both decided in the 1930’s, and the late Justice Scalia wrote an opinion for the modern Court rejecting a nondelegation challenge to the Clean Air Act. In a highly visible dissent filed in 2015, however, Judge Gorsuch offered a full –throated defense of the doctrine, suggesting he might try to lead an effort on the Supreme Court to breathe new life into the doctrine, an ominous prospect for modern environmental statutes that are commonly drafted with a broad brush.
Gorsuch also has written opinions suggesting sympathy for the argument that courts should be reluctant to recognize that private environmental plaintiffs have “standing.”