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A project tracking federal judicial nominations and courts.


Editorials and Opinion

 

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If Gorsuch gets through, big business wins (South Jersey Times [NJ], 03/22/17)
Letter to the Editor, Joseph D. Bastrimovich: If anyone thinks Gorsuch, or any judge, doesn't come to the court with an agenda, they are naive or stupid. Business-funded front groups like Judicial Crises Network wouldn't be spending oodles of money toward Gorsuch's confirmation if they didn't expect something from him.

Just Say No: Ted Cruz’s claim that Neil Gorsuch has super-legitimacy underscores why Democrats should filibuster him. (U.S. News & World Report, 03/21/17)
Robert Schlesinger, Managing Editor for Opinion: Cruz is right that the people did speak in November; but they chose Hillary Clinton, not Donald Trump. Unfortunately under our Constitution, "the people" don't select the president; that job falls to the Electoral College.... a special regard for the American people's wishes here should preclude confirming anyone (like Gorsuch) who was on Trump's well-publicized pre-election short-list for the seat. The second reason Democrats should oppose Gorsuch implacably – and they mentioned this repeatedly during the nomination hearing Monday – has to do with the treatment accorded to Judge Merrick Garland, President Barack Obama's nominee for the same seat.

Democrats must make the Gorsuch hearings about Trump’s contempt for our democracy (Washington Post, 03/21/17)
Sarah Posner: Democrats need to hammer away at Gorsuch to reveal his views on judicial independence.... Trump’s attacks on the judiciary, for instance, are so far outside the mainstream of normal presidential behavior that it would be malpractice for Democrats to fail to make this a subplot. In other words, the Democratic opposition to Gorsuch must be based on far more than his judicial philosophy and history.

Gorsuch Would Use "Originalism" to Affirm Right-Wing Agenda (Truthout, 03/21/17)
Marjorie Cohn: Largely discredited by courts and legal scholars, originalism is ultimately a way to reach a right-wing result under the guise of following the original intent of the authors of the Constitution.... "The bottom line is the views of many self-proclaimed originalists line up, not with those of We the People in 1789, but with those of the right-wing of the Republican Party in 2017," according to Sunstein. "Whether we're speaking of campaign-finance laws, commercial advertising, gun rights, affirmative action, gay rights, property rights or abortion, originalism has failed to prevent judges from voting in accordance with their political predilections."

Letter to the Editor: Gorsuch (Los Angeles Times, 03/21/17)
Jill Chapin: Thomas Jefferson would beg to differ with Gorsuch's assessment of rigid, inflexible document that Gorsuch presumes our Constitution to be.

This Is About Destroying the Presidency of Barack Obama: Digesting the Supreme Court nomination hearings of Neil Gorsuch. (Esquire, 03/21/17)
Charles P. Pierce: the basic absurdity of this nomination—and, thus, yesterday's hearing—runs on two tracks. The first, of course, is that he shouldn't have been nominated at all, because there shouldn't have been a vacancy to fill. The Republican legislative majorities simply decided that the previous president should not have been allowed to fill the seat left open with the death of Antonin Scalia because the previous president was a Democratic politician.... the president* sub-contracted this selection to various wingnut welfare legal institutions, which makes Gorsuch's repeated refusals to talk about issues going forward an absurdity in and of itself.

Judge Gorsuch and the frozen truck driver (CNN, 03/21/17)
Paul Callan: The other judges on the 10th Circuit were willing to apply a dollop of common sense ... The twin brother of textualism in constitutional law is the doctrine of originalism, which holds that when interpreting the Constitution, a judge should stay as close to the "original intent" of the Founding Fathers as possible. But even true believers in originalism have to bend to the reality of changing times on occasion. After all the 13 original states often used punishments such as whippings and displaying criminals in stocks and pillories until the mid-19th century. Today even most originalists would find such punishments to be "cruel and unusual" violations of the US Constitution. Gorsuch would be wise to remember the oft oft-quoted words of Scalia, "I'm an originalist and a textualist, not a nut." Even Scalia probably would have let the truck driver thaw out at the gas station.

Gorsuch could hasten erosion of women’s rights (Honolulu Star Advertiser, 03/21/17)
Op-Ed, Island Voices, Andrea Freeman: Filling the vacant U.S. Supreme Court seat is a matter of urgency in these tumultuous times, but it is also one demanding cautious and careful consideration.

LETTER: Supreme Court nominee Gorsuch and 'religious freedom' (Colorado Springs Gazette, 03/21/17)
Ken Burrows: Gorsuch has more than once written in support of granting "religious freedom" exemptions from generally applicable law, making other citizens' equality and rights subordinate to religious beliefs they do not hold. So the question for Gorsuch is: Do you actually agree with the original meanings of the framers or will you continue to defer to "religious freedom" claims even when doing so results in "abridging the natural and equal rights" of other citizens?

Letter to the Editor (Los Angeles Times, 03/21/17)
David Weisenberg: When the Constitution was first written, the framers did not explicitly give the Supreme Court the right to review the constitutionality of a law. This right was established only later, in the case of Marbury vs. Madison, and was considered by many to be a broad overreach of the authority of the court. It seems to me that a true originalist would have to recuse himself

March 21 Letter: Gorsuch’s views don’t reflect mainstream thinking (San Jose Mercury News [CA], 03/21/17)
Daniel Oxenhandler: I am opposed to Judge Neil Gorsuch for Supreme Court because his record shows a proclivity to favor the wealthy and corporate interests over the rest of us. His ruling in the Hobby Lobby case and dissenting opinion in the frozen trucker case, show Judge Gorsuch to be more conservative than his predecessor, Justice Antonin Scalia.

"Gorsuch's Selective View of 'Religious Freedom'; Trump's nominee to replace Justice Antonin Scalia possesses the same limited view of religious freedom supported by the conservatives currently on the Supreme Court." (Atlantic, 03/21/17)
Prof. Garrett Epps: On the strength of the Hobby Lobby opinion, he seems to think there is no balance: the economically and culturally powerful prevail. If so, this is a serious blind spot: privileging specific beliefs and believers is, in fact, a pernicious spiritual gerrymander—Caesar’s sword closing liberty’s garden to all but a favored few.

Neil Gorsuch’s originalism problem: His constitutional philosophy, shared by Scalia, Thomas and Bork, just doesn't make any sense (New York Daily News, 03/21/17)
Erwin Chemerinsky: the original understanding of the Constitution is unknowable, and even if it could be known, should not be binding today. ... If constitutional interpretation must follow the specific intentions of the framers, as Gorsuch wrote, the results often will be unacceptable if not absurd.

Gorsuch is poor choice for Supreme Court (Gazette [Cedar Rapids, IA], 03/21/17)
Cathy Glasson, guest column: Judge Gorsuch has proved throughout his career, and especially since becoming a federal judge, that he will side with corporations over working people every chance he gets.... Judge Gorsuch has turned his back on working people like me when they have looked to the courts for justice.... President Donald Trump had not only promised to pick his Supreme Court judges from Federalist Society-approved candidates, but also publicly said the Heritage Foundation would help him put together his list. These are the same out-of-state special interests that were behind the recent legislation in Iowa that silences the voices of nurses, teachers and firefighters across our state.

Schumer Rightly Asks GOP: Why the Rush on Gorsuch? (People For blog, 03/21/17)
Paul Gordon: As Chuck Schumer said today: "I’d like to point out that it is the height of irony that Republicans held this Supreme Court seat open for nearly a calendar year while President Obama was in office, but are now rushing to fill the seat for a president whose campaign is under investigation by the FBI. ... It is unseemly to be moving forward so fast on confirming a Supreme Court justice with a lifetime appointment while this “big, gray cloud” of an FBI investigation hangs over the presidency."

Neil Gorsuch’s Charm Offensive Confuses Bias With Ideology: Republicans make the confirmation about whether he’s an honest judge or not. That obscures what this is really about: radical conservatism and a stolen Supreme Court seat. (Daily Beast, 03/21/17)
Jay Michaelson: the aw-shucks campaign masks the real reasons Democrats must filibuster his nomination unless some kind of agreement on the next Supreme Court nominee can be reached with Republicans.... No one is accusing Gorsuch of being biased, unfair, or prejudiced. The claim is that he has a sincere, extreme judicial ideology that tends to dictate results. That, after all, is why the Heritage Foundation and Federalist Society love him so much. Not because he’s biased or unbiased—but because he has a set of beliefs about the law, beliefs that tend to lead to certain results.... Democrats cannot reward the unprecedented and unconstitutional Republican tactics of 2016.

Would Gorsuch Safeguard Democracy? Trump's Supreme Court pick might favor big money pouring into U.S. elections. (U.S. News & World Report, 03/21/17)
Allegra Chapman: Neil Gorsuch, a 10th Circuit appellate judge and by all accounts "nice guy," prides himself on being an "originalist," much like his would-be predecessor, Justice Antonin Scalia. This alone gives many progressives pause; under an "originalist" viewpoint, many of the rights we now take for granted – marriage equality, reproductive freedom and others – would not be constitutionally safeguarded for the sole reason that our founders did not and could not have had them in mind when drafting our democracy's initial documents.

Gorsuch would endanger most vulnerable: persons with disabilities (Des Moines Register [IA], 03/21/17)
Sen. Tom Harkin and Eve Hill, Iowa View contributors: As the chief Senate sponsor of the Americans with Disabilities Act, and as an attorney enforcing the ADA for over 20 years, respectively, we have grave concerns that Supreme Court nominee Neil Gorsuch has repeatedly ignored critical disability rights laws and hurt children and workers who rely on those laws. One of the most disturbing areas of that record involves the education of children with disabilities.

Neil Gorsuch Is Not Another Scalia. He’s the Next John Roberts.  Gorsuch puts a handsome face on an ugly ideology. (Nation, 03/21/17)
Ari Berman: “The existing Voting Rights Act, the constitutionality has been upheld, and I don’t have any issue with that,” Roberts answered.... Yet eight years later, Roberts authored the majority opinion in Shelby County v. Holder gutting the Voting Rights Act. He’s aggressively pushed the court to the right rather than calling balls and strikes, writing or joining reactionary opinions .... we know enough about Gorsuch to surmise that he was nominated by Donald Trump to be a smooth-talking advocate on the bench for a far right ideology.

Opinion The myth that is Neil Gorsuch's 'originalism' (Los Angeles Times, 03/21/17)
Stephen F. Rohde, Letter to the Editor: The best refutation of the myth of “originalism” being espoused by Supreme Court nominee Neil Gorsuch was explained by the late Justice William Brennan. He pointed out that trying to “find legitimacy in fidelity” to the intentions of the framers of the U.S. Constitution was “little more than arrogance cloaked as humility.”

The Gorsuch confirmation hearing is about politics, not law (Boston Globe, 03/21/17)
Jeff Jacoby, Globe Columnist: Supreme Court nominees should be obliged to give substantive answers to serious questions during their confirmation hearings: I’ve pressed that argument in columns over the years, on the grounds that senators can’t fulfill their duty to check and balance the judiciary unless they insist on exploring the constitutional philosophy and legal reasoning of the nominees before them.... Supreme Court justices do legislate. Again and again they render decisions that dramatically shape American law .... Gorsuch should be made to give answers to serious legal questions.... The Supreme Court has never been above politics.

Neil Gorsuch Knows What Dark Money Is, and What That Money Expects of Him: Enough with the absurd notion that the Supreme Court is apolitical. (Esquire, 03/21/17)
Charles P. Pierce: He knows what dark money is. He knows where it comes from. He knows the use to which it is put. And he knows what is expected of him when he is confirmed.

Gorsuch an originalist? Senators should make him prove it (Huffington Post, 03/21/17)
Elizabeth B. Wydra, Constitutional Accountability Center: Part of the heavy burden Gorsuch carried into this week’s hearing is his need to prove that he is not – as we discuss in our latest Issue Brief (and echoed by Senator Amy Klobuchar in her first-round questioning) – a “selective originalist” who applies the text and history only of parts of the Constitution he may agree with ideologically, while giving short shrift to the parts he may not agree with.

Neil Gorsuch and the “Frozen Trucker” The judge’s infamous dissent reveals he may not have the temperament to serve on the Supreme Court. (Slate.com, 03/21/17)
Jed Handelsman Shugerman: His opinion in TransAm Trucking v. Administrative Review Board, though, exposes a big hole in Gorsuch’s anti-Chevron theory, showing that judges can abuse statutory interpretation just as badly as bureaucrats. Gorsuch’s opinion in what’s known as the “frozen trucker” case also demonstrates an arrogant and cold judicial personality. I have read very few modern opinions that were more callously written than Gorsuch’s TransAm dissent.

Gorsuch's Nomination Is the Fruit of a Broken Confirmation Process; The Colorado judge's potential rise to the Supreme Court is compromised by the crudest sort of bare-knuckle partisan politics (Atlantic, 03/21/17)
Prof. Garrett Epps: because the Gorsuch nomination comes to the Senate compromised by the crudest sort of bare-knuckle partisan politics; the concerns that fact raises will be important for years to come. The vacancy he will fill was created by an unprecedented Senate power play that denied an elected president his constitutional prerogative; the president who nominated him has made an unprecedented effort to politicize and even attack the courts’ authority.

[Editorial] Neil Gorsuch Faces the Senate (New York Times, 03/21/17)
"Judge Gorsuch became President Trump’s nominee only after Senate Republicans’ outrageous and unprecedented blockade of Merrick Garland .... there’s little doubt that he would be among the most conservative justices in the court’s modern history, with negative consequences for workers’ rights, women’s reproductive freedom, politics uncorrupted by vast sums of dark money, the separation of church and state, the health of the environment and the protection of the most vulnerable members of society."

Gorsuch’s Disturbing Cases: Where There’s Smoke … (People For blog, 03/21/17)
Paul Gordon: Just because Gorsuch doesn’t rule in favor of corporations every single time, doesn’t mean that he hasn’t shown a clear and persistent pattern of twisting the law and facts of a case to serve his own ends. The scales of justice are supposed to be evenly weighed, without exception. When a judge has a tendency to tip that balance in one direction, it disrupts justice ... as PFAW’s analysis of Judge Gorsuch’s dissents reveals, out of 11 dissents where he took a side with regard to corporations, consumers, and workers, all but one was pro-corporate or anti-consumer/worker.

Remember Merrick Garland at the ballot box in 2018 (Washington Post, 03/21/17)
John DesMarteau, Letter to the Editor: In refusing to consider Mr. Garland’s nomination, Mr. McConnell defined a president’s term in office as being three years when it comes to judicial appointments.... Americans must send Mr. McConnell a message that his actions regarding the nomination of Mr. Garland were not acceptable.

Gorsuch’s Hollow Rationale For Evasion (People For blog, 03/21/17)
Paul Gordon: Judge Gorsuch has bobbed and weaved around every attempt to get at the most important issue: his approach to judging. He won’t give even a hint on how he would have ruled in cases that the Supreme has already decided, whether recently or long ago. His explanation: If he gives his opinion on an already-decided case, he’ll be seen as having pre-judged subsequent cases building off the already-decided one. Under this reasoning, once the Supreme Court issues an opinion—revealing how each justice voted and analyzed the case—then all the justices have pre-judged all future cases building off of that one case.

If Judge Gorsuch is Really Like Justice Scalia, Then He Will Be No Fan of Voting Rights (American Constitution Society Blog, 03/21/17)
Joshua A. Douglas, Robert G. Lawson & William H. Fortune: Justice Scalia’s rulings were extremely restrictive when it came to voting rights. Senators should therefore ask Judge Gorsuch whether he agrees with Justice Scalia’s views on the constitutional right to vote.