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Judging the Environment judicial nominations photo

A project tracking federal judicial nominations and courts.

Editorials and Opinion


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Justice Alito Declares “Carbon Dioxide Is Not a Pollutant” in a Candid, Confused Speech (, 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.

How Many Deceptions Can Chuck Grassley Fit in Just One Statement? (People For blog, 02/13/17)
Paul Gordon: Obama did not have two Supreme Court vacancies and nominees, as Grassley states. He had three. Grassley’s “alternative fact” that Merrick Garland was never nominated to the Court must be confronted whenever he uses it as part of his cloud of obfuscation.... partisanship explains another deceptive part of Grassley’s statement. It’s clear that he wants Republicans to get credit for not filibustering the SCOTUS nominees of the last two Democratic presidents (of course, you can’t filibuster a nominee who’s hasn’t even been allowed a hearing).... Both Presidents Clinton and Obama nominated jurists who could garner supermajority support in the Senate. For Grassley to demand credit for not filibustering them takes some chutzpah. Had President Trump, like Clinton and Obama, nominated a jurist who could garner that kind of support, then no one would be talking about the need for 60 votes .... Unfortunately, Trump chose to nominate Neil Gorsuch, whose history of favoring the wealthy and powerful does not warrant majority support, let also supermajority support.

Like DeVos, Gorsuch Fails to Understand Laws Protecting Students with Disabilities (People For blog, 02/13/17)
Sarah Lobe: Like DeVos, Judge Gorsuch has proven that he does not understand IDEA or how it should be applied. But that hasn’t stopped him from using it to make a bad judgement that seriously impacts students with disabilities.... To Judge Gorsuch, those educational benefits “must merely be more than de minimis.” But parents of children with disabilities, other circuit courts, disability rights NGOs, federal government education experts, and 118 members of Congress commenting on the intent of IDEA say that Judge Gorsuch is wrong to impose such a low standard. By incorrectly applying IDEA in Luke’s case, Judge Gorsuch set a harmful legal precedent for other students with disabilities that is now under review by the U.S. Supreme Court.

The next GOP assault on voting rights (Washington Post, 02/13/17)
E.J. Dionne Jr., Opinion writer: The Senate rejected Sessions as a judge 31 years ago. But now that he is our chief law enforcement officer, holding him accountable for how he vindicates or undermines civil rights and voting rights is a central task. ... And the struggle for democracy is also at stake in the fight over President Trump’s nomination of Judge Neil Gorsuch to the Supreme Court. Senate Minority Leader Charles E. Schumer told MSNBC’s Rachel Maddow last week of “an eerie feeling” he had when he spoke with Gorsuch. “Here was a judge, well-groomed, intelligent, very polite, very, very articulate, who wouldn’t give his views on anything,” Schumer said. This reminded him of someone else. “Justice [John] Roberts, then-Judge Roberts, assured us he would call balls and strikes,” Schumer said. “He gets in office, and his court does Citizens United, a huge break with precedent that ruins, ruins the politics of America. He repeals, basically, the Voting Rights Act by eliminating Section 5 . . . and I am very worried that Judge Gorsuch is similar.” The court’s action on voting rights made it far harder to police abuses, while Citizens United undercut the regulation of big money in politics. So if you wonder why there is skepticism among liberals about Gorsuch, consider what conservative Supreme Court justices have already done.

To Bork or Not to Bork? The Old Fight That Shows Democrats Why, and How, to Stop Gorsuch: Trump, like Reagan, squandered his chance to offer a unifying pick to satisfy his most conservative supporters (Daily Beast, 02/13/17)
JULIAN ZELIZER: there are many reasons for Democrats to consider using their power to filibuster his nomination. After Republicans refused to confirm former President Obama’s nominee Merrick Garland—leaving many Democrats to feel like this is a “stolen seat”—the president could have sent a consensus nominee. After having lost the popular election by large numbers and now stimulating fears that he won’t respect our system of checks and balances, this was the moment to demonstrate that he understands the tensions he’s helped create. Rather than a pick intended to please the right, he could have selected someone who Democrats could have felt good about supporting even if it came from this administration. But he did not. With Gorsuch, Trump has put forward a nominee who comes from the most conservative part of the judicial spectrum. As an originalist who is a favorite of the Federalist Society, Gorsuch has a very conservative record on key issues like religious rights, reproductive rights, gay marriage, gun rights, criminal justice and more. There is good reason to believe that he would uphold the principles of the late Justice Antonin Scalia and pose a serious threat to a number of important public policies. Senate Minority Leader Chuck Schumer, writing in The New York Times, warned that Gorsuch refused in their closed-door interview to answer “rudimentary” questions about executive power, campaign finance, voting rights or the constitutionality of Trump’s refugee ban. As Senate Democrats consider whether or not to filibuster this nominee, they should take another look at what went down when Senators were considering the case of Robert Bork. Rather than a model that they need to avoid, it in fact offers an important lesson about the legitimate reasons to block a high court nominee.

Protect women's rights, no to Gorsuch (Billings Gazette [MT,WY], 02/13/17)
David E. Wanzenried, Letter to the Editor: The U.S. Senate should not confirm U.S. Appeals Court Judge Neil Gorsuch to the Supreme Court.

Six Things You Can Do To Protect Fundamental Rights and #StopGorsuch (People For blog, 02/13/17)
Layne Amerikaner: We can take action to made sure that a Supreme Court nominee like Judge Gorsuch, who puts his own ideology above the Constitution, is not confirmed to our nation’s most important court. Here are six things you can do ...

Senators don't share state interests (Missoulian [MT], 02/12/17)
Carol Olson, Letter to the Editor: I recently heard that there was concern, by the Democrat Party, that U.S. Sen. Jon Tester would vote with Republicans for Donald Trump's selection for Supreme Court, Neil Gorsuch. Gorsuch will be making critical decisions for America for the rest of his life; he opposes abortion, plans to pursue extremist policies on core questions likely to come before the court, from religious equality to abortion rights, voting rights, access to healthcare, LGBT rights, anti-discrimination protections. I was hoping Senator Tester was more on the side of the people.

Team Trump’s Litmus Test for Judges: Blind Deference to the President (People For blog, 02/12/17)
Drew Courtney : Americans have a mountain of evidence that Donald Trump’s chief criterion for selecting judges isn’t competence or independence but blind deference to Donald Trump himself.... Gorsuch’s supporters have attempted to paint the nominee as an independent figure who can be trusted to put the Constitution above loyalty to the man who put him on the bench. That claim fails on two counts. First, there’s no evidence to support it. And second, if Neil Gorsuch is really willing to stand up for judicial independence, why was he nominated by Donald Trump?

Gorsuch unlikely to stand up to Trump (Day [CT] , 02/12/17)
Elliot Mincberg: "Calling Trump’s attacks on the judiciary “disheartening” and “demoralizing” says nothing about his willingness to stand up to abuses of authority, and isn’t even very strong criticism of Trump’s wholesale attacks on the judicial branch. Gorsuch has refused to discuss with senators substantive questions that might say something about his views on Trump’s actions .... his unwillingness to question executive branch officials’ abuse of their authority suggests that he will not be a Supreme Court justice who will stand up to the abuse of presidential authority by Trump."

Letter: Christina Maxwell: Senate Democrats cannot give Gorsuch a pass (Daily Hampshire Gazette [MA], 02/12/17)
"Too many important issues are at stake — the Affordable Care Act, voting rights, and marriage equality among them — for Democrats in the Senate to give him a pass. ... Trump’s remarks are an assault on the democratic cornerstone of separation of powers, and Senate Democrats must use the confirmation process to demand that Gorsuch say so out loud."

Guest Post: Oppose Neil Gorsuch for the Supreme Court (Intelligent Discontent blog [MT], 02/11/17)
Kim Leighton: LGBTQ Americans can’t risk having an anti-LGBTQ ideologue on the highest court in the land. Join me in urging Sen. Tester to stand up for the Constitutional rights of all of us and strongly opposing Donald Trump’s extreme SCOTUS pick.

Sen. Bob Casey should lead on the Supreme Court and oppose Gorsuch (Philadelphia Tribune [PA], 02/11/17)
Reverend Dr. Robert P. Shine, Op-Ed: Judge Gorsuch has argued that liberals should stop relying on the courts to pursue what he calls their “social agenda” — little things like equality and the future of public education. ... He embraces a fringe judicial philosophy, one that was rejected even by Scalia, that would make it harder for agencies to enforce the laws that protect the American people. Here’s the bottom line: In our constitutional system of government, Americans rely on the Supreme Court to uphold our rights. Judge Gorsuch’s record does not demonstrate he is committed to the principle that the Constitution and the rule of law are meant to protect all of us, not just the rich and powerful. And that makes him unfit for the Supreme Court. Not a hard call, Senator Casey.

Wrong man (Miami Herald, 02/11/17)
Ferdinand Phillips, Letter to the Editor: Gov. Rick Scott’s letter on Feb. 8 endorsing Judge Neil Gorsuch for the Supreme Court is enough to convince me that Gorsuch is definitely the wrong man for the job.

Does Gorsuch Equate Judicial Independence with Conservative Rulings? (People For blog, 02/10/17)
Paul Gordon: Gorsuch gave us his vision of judicial independence over a decade ago in a National Review article called “Liberals ‘N’ Lawsuits,” .... He contended that progressives were improperly using the courts to achieve ends such as church-state separation and marriage equality, which he reduced to “social policy.” ... Judge Gorsuch apparently believes that independence is defined by whether the result is politically conservative or not ....

Fire Sen. McConnell (Orlando Sentinel [FL] , 02/10/17)
Jan Jennings, Letter to the Editor: His censorship of Sen. Elizabeth Warren last week during the confirmation hearings for Jeff Sessions is outrageous. ... His refusal to even grant a hearing for Merrick Garland, President Obama’s nominee for the U.S. Supreme Court, was abhorrent, especially now that he is trying to ram Neil Gorsuch and all of Trump’s wholly unqualified Cabinet candidates down our throats.

Letter to the Editor: Neil Gorsuch: Religious freedom (Seattle Times [WA] , 02/10/17)
Jim Erckmann: Gorsuch believes that a company can refuse service to anyone who does not adhere to its religious beliefs. This legal philosophy opens the door to unlimited discrimination for a wide variety of motivations, with an agent of discrimination only having to profess that this is what it/he/she believes. This would be a disaster for real religious freedom.

Oppose Gorsuch (Kansas City Star, 02/10/17)
Jermaine Reed, Councilman, Kansas City, Letter to the Editor: Trump evidently hopes that Gorsuch will provide him with a rubber stamp as he attacks the rights of immigrants, women and minorities. As a judge, Gorsuch ruled that employers could deny women access to contraception coverage in their health care plans based on religion, and he has complained about LGBTQ people seeking equality in the courts. He has also tried to make it harder for workers and consumers to seek justice through class-action lawsuits and workplace discrimination laws. Neil Gorsuch isn’t someone we can trust to be a check on Trump’s unconstitutional agenda. Sen. Claire McCaskill should oppose his nomination.

Judicial Independence ≠ Crumpling Under Trump’s Pressure (People For blog, 02/10/17)
Paul Gordon: So this week, we saw a real-time example of how Judge Gorsuch would stand up to political pressure from Donald Trump if confirmed: He won’t. In his very first test, Gorsuch crumbled before the pressure put on him by the president, clearly willing to toss the courts’ (and his own) integrity out the window upon executive command.

Charles Schumer: Judge Gorsuch, We Won’t Be Fooled Again (New York Times, 02/10/17)
"The bar is always high to achieve a seat on the Supreme Court, but in these unusual times — when there is unprecedented stress on our system of checks and balances — the bar is even higher for Judge Neil M. Gorsuch to demonstrate independence. In order to clear it, he will have to convince 60 of my colleagues that he will not be influenced by politics, parties or the president. The judiciary is the last and most important check on an overreaching president with little respect for the rule of law. The only way to demonstrate the independence necessary is for Judge Gorsuch to answer specific questions about the judiciary and his judicial philosophy.... But over the course of an hour, he refused to answer even the most rudimentary questions.... The overarching lesson of Chief Justice Roberts can be summed up in a familiar phrase: Fool me once, shame on them; fool me twice, shame on me.... A truly independent judge would have the fortitude to condemn the president’s remarks, not just express disapproval, and to do it publicly."

Corporations as people (Tampa Bay Times [FL], 02/10/17)
Joe Jones, Letter to the Editor: Judge Neil Gorsuch in the Hobby Lobby case determined that a business is a person. I don't understand that ruling. ... A health corporation defrauds Medicare out of a billion dollars, gets fined $100 million, no one goes to jail and the CEO gets a golden parachute of $100 million. I on the other hand am a doctor and I defraud Medicare out of million dollars. Do I get a 10 percent fine, or probation, or am I going to jail? My sense is I get all three. So where is justice under the law?

Letter to the Editor: Pick a moderate (Gainesville Sun [FL], 02/09/17)
Duane Colwell: The actual, fundamental reason for the 60-vote rule is not necessarily to allow filibusters; it is to get moderate candidates. The obvious solution, which so many like Hart do not recognize, is to refuse Gorsuch, who will never get 60 votes, and pick a moderate who can garner 60 votes. No doubt there are plenty of candidates available who are well qualified and would be acceptable to at least 60 Republicans and Democrats.

Letter to the Editor:  (Boston Herald, 02/09/17)
Krista Maruca: There are more left-leaning Americans than not. So why would Trump nominate someone so far to the right of the average American? ... I’ll be supporting a Democratic filibuster of this nomination until Trump names someone who is more representative of American opinion.

HOW THE DEMOCRATS CAN STOP NEIL GORSUCH: And why they absolutely must. (Vanity Fair, 02/09/17)
Scott Turow: he is right-wing—very far right in fact—and it’s imperative that Americans understand that. And, therefore, it’s also important that Democrats approach Gorsuch’s confirmation hearing with a calculated strategy that emphasizes two avenues of attack. First, that Gorsuch is filling a seat that by any objective reading of the Constitution belongs to Merrick Garland. Second, that Gorsuch’s views on a host of questions are out of step with a clear majority of the American people.... Declaring that liberals have tried to use the courts to accomplish their policy agendas is true. But failing to recognize that conservatives have been equally, if not more guilty of the same thing, is infuriating.

Gorsuch poor choice to fill Supreme Court vacancy (Letters) (Republican [Springfield, MA], 02/09/17)
William J. Paquette: While serving on 10th Circuit Court of Appeals, Supreme Court appointee Neil Gorsuch not only supported Hobby Lobby's case but went even further by writing that not just corporations but individual owners should have the right to challenge the ACA mandate. In light of this decision that, in effect, recognizes a Constitutional right to engage in discrimination, shouldn't we ask ourselves if this is a judge that we want appointed to the highest court in the land?

Letter to the Editor: Gorsuch not fit for court (Bismarck [ND] Tribune, 02/09/17)
Kate Black: I firmly believe that Sen. Heidi Heitkamp must oppose Donald Trump’s Supreme Court nominee Neil Gorsuch given his opposition to women’s rights and willingness to put corporations first at the expense of everyone else. Gorsuch has proven time and again that he values the rights of corporations over the individual worker.

Commentary: Cabinet is small potatoes; Gorsuch is the real battle (Austin American-Statesman [TX] , 02/08/17)
Opinion by Brian Smith: Trump’s advantages at the Cabinet level vanish with Gorsuch, as court vacancies are rare and carry greater policy consequences.... A successful filibuster could pressure the administration to withdraw Gorsuch and replace him with someone more acceptable to the minority party. Democrats hold yet another advantage: Trump’s historically low approval ratings entering the White House. A lengthy or unsuccessful Supreme Court nomination process could burn political capital, causing these ratings to drop even further. A Gorsuch nomination defeat would embolden the Democrats heading into the 2018 midterm elections and set up the potential for the Democrats to exact revenge for their failed 2016 Merrick Garland Supreme Court nomination and leave a future seat open until after the 2020 election.

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.”

Gorsuch Standing Up To Trump Tweets? Puh-leeze! (People For blog, 02/08/17)
Drew Courtney: Trump’s pattern of attacks on federal judges is more than demoralizing—it’s a threat to the separation of powers and our constitutional system, and it’s hard to imagine a more tepid response than to call them “disheartening.”... Nor should Gorsuch’s vague disagreement paper over the very real concerns about how independent he’d be on the Courts. Just yesterday, Gorsuch “avoided answers like the plague” when Senator Chuck Schumer pressed him on important issues like the Emoluments Clause.

Senate Democrats should vote against confirming Judge Gorsuch: Letter to the Editor (Cleveland Plain Dealer [OH], 02/08/17)
Jeffrey Bendix: Senate Democrats should vote against confirming Judge Gorsuch for the simple reason that the president who nominated him was not elected by a majority of voters. Therefore, anyone he nominates to the court would not, by definition, represent the will of the American people and thus should not be on the court. I am confident that voters will understand and agree with this argument, in the same way they went along with Republicans' refusal to act on Barack Obama's nomination of Judge Garland.