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A project tracking federal judicial nominations and courts.


Editorials and Opinion

 

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Judge Gorsuch and the Role of Public Interest Litigation in our Democracy (American Constitution Society Blog, 03/22/17)
Prof. Alan K. Chen: the notion that democracy is superior to litigation as a means of social reform overlooks something critical. Litigation itself is a deeply embedded way of participating in our constitutional democracy for the politically powerless.

Gorsuch is threat to public education: Court nominee's record on school issues merits scrutiny (CommonWealth [MA], 03/22/17)
Opinion by Max McCullough: Gorsuch’s record on education-related cases should raise major concerns about how he may rule in the future if confirmed to the Supreme Court.

Neil Gorsuch Is Bad News for the Disabled (Progressive Magazine, 03/22/17)
Mike Ervin: If Neil Gorsuch, President Trump’s nominee to serve on the U.S. Supreme Court, is confirmed by the Senate, it will be a huge setback for Americans with disabilities. Throughout his judicial career, Gorsuch has exhibited a deep disregard for the rights and well-being of Americans with disabilities. The Bazelon Center for Mental Health Law analyzed Gorsuch’s voting record and concluded that he has a “consistently narrow view” of the Americans with Disabilities Act (ADA), the Individuals with Disabilities Education Act (IDEA) and other disability rights laws.

The Problems With Originalism (New York Times, 03/22/17)
Prof. Ken Levy: Originalism is just one of the theories that Judge Gorsuch shares with the late Justice Antonin Scalia; another is its closely related cousin, textualism.... Nowhere does the Constitution explicitly state that textualism, no less originalism or any other method, is the correct theory of constitutional interpretation. Justice Scalia also failed to realize — or at least admit — that textualism and originalism rarely determine a unique outcome for constitutional questions.... they are nothing more than thinly veiled disguises for modern political conservatism.

Yes, Dems Should Block Gorsuch While the FBI’s Trump Probe Goes on:  Mitch McConnell obstructed not only Obama’s Supreme Court pick but his effort to alert voters about Russian election hacking—inextricably tying these issues together. (Nation, 03/22/17)
Joan Walsh:  the man most responsible for blocking President Obama’s Supreme Court pick also prevented Obama from coordinating a bipartisan warning to the American people about Russian hacking. The Gorsuch confirmation and the Russian hacking issue are inextricably tied—because Senate majority leader Mitch McConnell personally tied them.

While Gorusch was testifying, the Supreme Court unanimously said he was wrong. Awkward. (Think Progress, 03/22/17)
Ian Millhiser: All eight justices rejected Gorsuch’s approach. IDEA, Chief Justice Roberts wrote, “is markedly more demanding than the ‘merely more than de minimis’ test applied by the Tenth Circuit.” Indeed, Roberts added, Gorsuch’s approach would effectively strip many disabled students of their right to an education.

Letters to the editor: Vote no on nominee (News Journal (DE), 03/22/17)
Kelly Mahaffey: My heartbreaks thinking Judge Neil Gorsuch could fill the vacant seat on the nation’s highest court. As the mother of two special needs children, I need Senators Carper and Coons to restore my faith and not confirm Gorsuch for the U.S. Supreme Court. In cases involving children with special needs, he’s consistently ruled against those with disabilities – those who need the most protection.

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.

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.

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.

Yes, Judge Gorsuch, there are Republican and Democratic judges (Southern Poverty Law Center, 03/21/17)
Richard Cohen, SPLC President: Supreme Court nominee Neil Gorsuch said that there is “no such thing as a Republican judge or a Democratic judge – we just have judges in this country.” My guess is that every senator on the Judiciary Committee, particularly the Republicans, knew that what he was saying wasn’t really true, and I’m sure that Judge Gorsuch knew it as well. As an exhaustive study published in 2006 by Cass Sunstein and other distinguished academics demonstrated, judges appointed by Republicans tend to vote differently than judges appointed by Democrats.... t’s because presidents of both parties seek out nominees whose judicial philosophy mirrors their own.... If there were not, Judge Garland would be on the Supreme Court today

Three Questions Senators Must Ask Judge Gorsuch (American Constitution Society Blog, 03/21/17)
Guest Post by Todd A. Cox, NAACP Legal Defense Fund: LDF has identified the three key questions senators should ask about Judge Gorsuch’s record on civil rights.

Can Neil Gorsuch Answer a Question? On Day 2 of his Supreme Court confirmation hearings, it remains unclear. (Slate.com, 03/21/17)
Mark Joseph Stern: thus far, he has not offered real answers to real questions.... What is odd is that Gorsuch refuses to say anything of substance .... Compounding the oddness of this situation is that Gorsuch is on the record questioning firmly established precedent. Most famously, as a judge on the 10th U.S. Circuit Court of Appeals, Gorsuch wrote an opinion questioning the wisdom of so-called Chevron deference, which requires courts to defer to executive agencies’ reasonable interpretations of law.

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.

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.

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.