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A project tracking federal judicial nominations and courts.


Editorials and Opinion

 

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Justice confirmation should be delayed: Letter: Hold up on Gorsuch (Orlando Sentinel [FL] , 03/24/17)
Lorelle Anderson: When Republicans refused to give Merrick Garland a hearing, though he was suggested by Republican Sen. John McCain as a candidate, they stated their opinion — loudly — that there are situations in which a president’s Supreme Court nomination should not be considered. ... The current situation, in which the president and his advisers are being investigated for collusion with a foreign government to subvert our electoral process, is far more serious. Until the investigation is complete and the president has been cleared of any wrongdoing, his nomination to the Supreme Court must be put on hold.

Letter: Sen. Hatch’s hollow rhetoric (Salt Lake Tribune [UT], 03/24/17)
Scott Bell: Sen. Orrin Hatch wants a speedy, fair confirmation hearing for Supreme Court nominee Neil Gorsuch .... Did you give President Barack Obama's nominee, Merrick Garland, the same courtesy/professional review, senator? Yes, that Merrick Garland, whom you said there was "no question" could be confirmed to the Supreme Court. The same nominee who is "highly qualified," whose "legal experience is ... impressive," and whom you "would place ... at the top of the list." Except that you didn't. Oh, the hypocrisy.... Your leading role in obstructing Garland's confirmation was the most overt politicization of the judicial process I've ever seen.

Why the Democrats are in a Win-Win Situation by Filibustering (American Constitution Society Blog, 03/24/17)
Prof. Sanford Levinson, Guest Post: I strongly support filibustering the nomination of Judge Gorsuch to join the Supreme Court. Part of the reason is that I regard his appointment as filling a "stolen seat." Part of it is that I thought his "answers" were remarkably non-enlightening. No one who is a serious originalist can possibly give as much primacy to precedent as he was pretending to do. And "pretending" is the operative word, since it is inconceivable that he will not vote to reverse a number of important cases. ... There are two reasons Republicans might in fact be reluctant to eliminate the filibuster (and, therefore, to sacrifice Gorsuch and, possibly, other replacement nominees). One is a principled belief that the filibuster is a good idea. The other, far more important in this context, is the justified fear that Ginsburg and Breyer (and perhaps Kennedy as well) will live on until 2020.... it increases the likelihood of a liberal takeover of the Court if Ginsburg, Breyer and Kennedy last it out.

[Editorial] A Roadblock to the Court for Neil Gorsuch (New York Times, 03/24/17)
"Despite his insistence that he would approach every case with an open mind, his record strongly suggests he would rule the way Republicans would like in most, if not all, cases. Over three or four decades on the court, he would help push the law further to the right in many areas. In a speech on the Senate floor, Mr. Schumer pledged to vote against Judge Gorsuch because, he said, “his career and judicial record suggest not a neutral legal mind but someone with a deep-seated conservative ideology.” The best rationale for the filibuster, however, is the outrageous behavior of Mr. Schumer’s Republican colleagues, who refused even to consider Judge Merrick Garland, Mr. Obama’s highly qualified choice to fill the vacancy created by the death of Justice Antonin Scalia, in February 2016 — solely to hold the seat open for a conservative judge."

Bob Casey: Why I'll vote against Gorsuch (Philadelphia Inquirer [PA], 03/24/17)
"Gorsuch parsed the Surface Transportation Assistance Act to argue that the driver was not protected in his decision to drive away, despite the risk of freezing to death if he stayed put. Fortunately for Maddin, the majority of the appellate court panel disagreed with Gorsuch. His colleagues on the 10th Circuit Court of Appeals described Gorsuch's labored interpretation of the statute as "curious" and ruled in favor of the driver. Workers like Maddin would be at greater risk of seeing their health and safety protections undermined if Gorsuch is elevated to the Supreme Court. ... the judge's long record reveals a rigid judicial philosophy that leads him to routinely side with powerful interests and against workers and middle-class families. Gorsuch also has a troubling trend of ruling to limit legal protections for individuals with disabilities. ... We need a Supreme Court justice who will restore fairness, balance, and independence to the highest level of the judiciary. Based on his record, I do not believe Gorsuch would be that kind of justice. I will vote against his confirmation."

Letter: Gorsuch setting bad precedent (Register Guard [OR], 03/24/17)
Nowell King: Why is Supreme Court nominee Neil Gorsuch, as a strict constructionist who has sworn to uphold the Constitution, willing to take a seat knowing that Barack Obama’s nominee, Merrick Garland, was denied a fair hearing?... I encourage anyone who shares my concerns to support members of Congress in filibustering not only his nomination but all of President Trump’s nominees until Judge Garland is given the opportunity to serve that he deserves.

Opinion: To defend rule of law, Dems must filibuster Gorsuch hearing (Austin American-Statesman [TX] , 03/24/17)
Prof. Charles Olney: President Obama chose Merrick Garland — a “consensus nominee” in the words of Republican Senator Orrin Hatch. Like Gorsuch, Garland was eminently qualified and highly regarded by all sides. Moreover, unlike Gorsuch — who would be among the most conservative judges on the Court — Garland is near the middle of the ideological spectrum.... independence is precisely what the breaking of these norms endangers. In the world envisioned by the Republican blockade of Merrick Garland, qualifications for the job are reduced exclusively to partisan interests .... Democrats must challenge the idea that long-standing normative protections against abuse of power can be broken without consequence.

To Be Equal…Supreme Court nominee Gorsuch has not met the Civil Rights standards to earn our support (New Pittsburgh Courier [PA], 03/24/17)
Opinion by Marc H. Morial, National Urban League: More than most other communities, the future of African Americans’ rights and opportunities hang on the confirmation of a Supreme Court justice. That’s why the National Urban League cannot support the nomination of Judge Neill Gorsuch.... what I find most troubling in the record of Judge Gorsuch is his apparent criticism of those who have sought advancement of individual rights through the courts. He consistently has ruled against the rights of workers and consumers who were harmed by employers and corporations, and against disabled students pursuing their right to a meaningful education.... his nomination was the result of an egregious dereliction of duty by the Senate, who refused to give President Obama’s nominee, Merrick Garland, the hearing he was due.

OPINION COLUMNIST: In the case of a trucker’s life vs. his cargo, Judge Neil Gorsuch ruled for the cargo (Denver Post [CO] , 03/24/17)
Ira Chernus, Guest Commentary: Maddin had a reasonable apprehension not just of injury, but of death. Six different judges agreed that he should not have been fired. The only judge who disagreed was Neil Gorsuch.... Gorsuch was not simply applying a clear-cut law. He was inventing his own rather heartless interpretation, one that supported the trucking company, which was out to save its profits, against the trucker, who was out to save his life.... If you think a man so lacking in logic as well as heart has no place on the Supreme Court, let Sens. Michael Bennet [and] Cory Gardner know. Bennet’s vote, especially, could well decide whether or not Gorsuch sits on the Supreme Court for the next 30 or 40 years.

Letter: Gorsuch is less moderate than Scalia (Salt Lake Tribune [UT], 03/24/17)
Elise Love: Neil Gorsuch stated that no one had asked him for any commitments yet he has repeatedly sided with big business over the interests of workers and consumers. In contrast, Merrick Garland was a candidate whose moderate decisions would have balanced the court. The unconstitutional partisan conspiracy that blocked Garland must not be legitimized with the appointment of Gorsuch. The "best judgment" of candidate Gorsuch is actually less moderate than that of Judge Antonin Scalia,

Amy Goodman and Denis Moynihan: Neil Gorsuch and the case of the frozen trucker (Santa Cruz Sentinel [CA], 03/24/17)
Op-Ed: Sen. Al Franken, D-Minn., during his questioning of Gorsuch Tuesday, said, “I think everybody here would have done exactly what he [Alphonse Maddin] did. ... It is absurd to say this company is in its rights to fire him because he made the choice of possibly dying from freezing to death or causing other people to die possibly by driving an unsafe vehicle. That’s absurd.”

Letter to the Editor On Gorsuch Supreme Court nomination (Washington Post, 03/24/17)
Christine Adams: There is no reason to believe that Senate Republicans, who have shown themselves willing to blow up all norms of political behavior, would uphold a “deal” with the Democrats when the next extremist Supreme Court candidate came around. Democrats cannot continue to bring reason, and principled adherence to norms that Republicans have long since abandoned, to a political gun fight. The Democrats should filibuster Judge Neil Gorsuch’s nomination and any future candidate who is not a consensus choice.

March 24 Letter: Americans should oppose Gorsuch confirmation (San Jose Mercury News [CA], 03/24/17)
Elaine Connolly: many analysts find that Gorsuch’s rulings demonstrate a willingness to side with big corporations over average citizens.... Our nation demands a Supreme Court that will eliminate big money from politics and remove the hyper-partisanism that has overtaken the political process. Therefore, we should all oppose the appointment of Judge Gorsuch.

Examining Judge Neil Gorsuch’s statements past and present (Washington Post, 03/24/17)
Michael Keegan, People for the American Way, Letter to the Editor: The March 18 front-page article “Rulings hint at Gorsuch’s leanings” mentioned a truck driver who was fired when he chose to go for help after being stranded alone and without heat for hours in subzero weather. It should also have mentioned the parents whose 22-year-old son was hit in the head with a stun gun and killed by a police officer after a chase, in violation of the officer’s training. And the family of a mine worker who was electrocuted after his employer failed to give him the adequate safety training given to other workers. And the father attempting to defend his disabled child’s right to an adequate education in a public school.... In each of these cases, Judge Neil Gorsuch tried, sometimes successfully, to slam the courthouse door in the faces of everyday Americans ... in his decade on the bench, he has left a trail of harmed and hurting Americans in his wake.

Letter to the Editor on Garaldn and Gorsuch Supreme Coutr nominations (Washington Post, 03/24/17)
Richard Dine: elections should not wipe away the Republicans’ dereliction of duty and further politicization of our judiciary in their failure to approve Judge Merrick Garland, particularly since then-President Barack Obama was careful to nominate a moderate to encourage bipartisan support. Democrats should boycott voting for Mr. Gorsuch until Republicans agree to give Mr. Garland the consideration he deserves.

Vail Daily column: Life and the Constitution are in flux (Vail Daily [CO], 03/24/17)
Rev. Dr. Jack R. Van Ens: Judge Neil Gorsuch rejects handling the Constitution as a fluid document. Like his mentor the late Justice Antonin Scalia, whose seat he expects to occupy on the Supreme Court, Gorsuch's rulings are determined by a faulty brand of constitutional interpretation. It's dubbed "originalism," or "textualism," in which Gorsuch assumes we can recover exactly what the Constitution originally meant to our nation's Founders.... Our nation's legal rights for all people are preserved when Supreme Court jurists honor the Constitution's historical context and apply its fluid, not fixed, principles to changing times.

Judge Gorsuch Needs a History Lesson on Access to Justice (American Constitution Society Blog, 03/23/17)
Prof. Imre S. Szalai, Guest Post: Judge Gorsuch’s statements demonstrate a lack of understanding of the history of arbitration law in America. When enacting the Federal Arbitration Act during the 1920s, Congress never expressed a preference in favor of arbitration. I challenge Judge Gorsuch to explain the basis for his perception of such a Congressional preference.... Judge Gorsuch claims to be a dedicated textualist, a strong supporter of the Seventh Amendment’s right to a jury trial, and a champion for access to justice. If Judge Gorsuch really is who he claims to be, then he should scale back the expansive, flawed interpretations of the Supreme Court in favor of arbitration.

Testimony on the Nomination of Judge Neil Gorsuch to the Supreme Court (American Constitution Society Blog, 03/23/17)
Prof. William P. Marshall: In fact, in the leading case on the subject, Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), Justice Scalia found the right against regulatory takings to be located not in text or history but in so-called “constitutional culture.” Id. at 1028.... n the Eleventh Amendment cases restricting citizens’ ability to sue states, originalists relied on history and not text. At the same time, in Fourteenth Amendment cases striking downstate affirmative action programs, they relied on text and not history. And in Shelby County v. Holder, 133 S. Ct. 2612 (2013), originalists had no reliable basis in either text or history when they struck down one of the most important pieces of legislation ever passed by the United States Congress -- § 5 of the Voting Rights. ... Originalism, then, is a doctrine of false promises. It suggests a fealty to the Framers’ design when it is actually antithetical to the Framers’ vision. It purports to offer a jurisprudence with fixed and predictable results when its application is nebulous and variable. It claims value neutrality when it has been erratically deployed in order to achieve specific results.

EDITORIAL: Voters deserve more facts at confirmation hearings (Beaumont Enterprise [TX], 03/23/17)
"Supreme Court nominee Neil Gorsuch gave senators specks of insight into his judicial philosophy this week, but he generally followed a script that has become familiar: Reveal as little as possible, be vague instead of specific, and be quick to note that the question being asked could come up in a future court case. Senators, and by extension the people who voted them into office, deserve better. They deserve straight answers to straight questions. Nominees like Gorsuch could provide them without compromising their integrity. The whole purpose of the hearings is to find out what the nominee thinks about key issues."

IU Law professor: Gorsuch unsuitable for Supreme Court (Indianapolis Star [IN], 03/23/17)
Opinion by Prof. Florence Wagman Roisman: Judge Neil Gorsuch’s opinions for the Tenth Circuit Court of Appeals show that he should not be confirmed for a seat on the U.S. Supreme Court. These decisions evidence a person who serves his own views rather than legal mandates and is far out of touch with, and coldly unsympathetic to, the concerns of ordinary Americans. They portray a jurist who is so persuaded he is right, even when his colleagues disagree, that he heeds his own rigid ideology, avoiding the respectful consideration of different points of view that should characterize an appellate court. Judge Gorsuch pushes the law to reach results that serve his political and social views, and his manipulations contradict what Congress has directed and prejudice people whom Congress has tried to protect. His several decisions involving the plight of children with disabilities – and the families of those children – provide striking examples of Judge Gorsuch’s unsuitability for the Supreme Court.

Constitution approach matters (Dallas Morning News, 03/23/17)
Letter to the Editor by Sanford G. Thatcher: Originalism is an incoherent approach to interpreting the Constitution.... Why? Because the Constitution was the product of compromise and deliberately incorporated ambiguity as a means of winning the votes needed to adopt it .... So, when it comes time for Congress to make a decision about approving Neil Gorsuch for a seat on the Supreme Court, this question of the coherence of the doctrine to which he adheres should be front and center.

Judge Gorsuch Makes It "Personal" (Dorf on Law, 03/23/17)
Prof. Michael Dorf: Judge Gorsuch could have ducked--and did duck--specific questions about the correctness of prior cases by using the might-come-before-me maneuver. But he also repeatedly relied on his newly fashioned just-my-personal-opinion dodge. That shouldn't have worked because it's so clearly incoherent. Even if one is naive enough to think that a judge's policy views have nothing to do with his legal views of contested issues, it goes beyond naiveté into self-contradictory nonsense to think that a judge's view of the law has nothing to do with his view of the law.

Do we really want an ‘originalist’ Supreme Court justice? (Sacramento Bee [CA] , 03/23/17)
Prof. Allan Ides: Supreme Court reports are replete with this or that justice’s semi-fictional version of history. Another concern that might give many Americans pause is the backward-looking nature of original understanding, under which neither the present effects nor the future consequences play any role in a judge’s interpretation of the law. An alternative to originalism would be a more inclusive approach that takes into account both the original understanding and the lessons we have learned over the course of the past 200 years, one that carefully considers the past, the present and the future.... I assume that Gorsuch strongly believes in the mission of originalism, but that strong belief, which is really a form of religion, makes him a most unfortunate candidate for a position on the Supreme Court.

Letter: Durbin: Gorsuch showed his true values with his ruling on the 'frozen trucker' case (Chicago Tribune, 03/23/17)
Sen. Dick Durbin: Maddin’s position was ruled on by seven different administrative and court judges. All but one judge ruled against the trucking company. That one judge was Gorsuch.... he 10th Circuit majority noted that Judge Gorsuch cherry-picked one dictionary’s definition to favor the company. Other dictionaries, and the law’s purpose of protecting health and safety, favored Maddin.... we can only look at his record in deciding whether he should be given a lifetime appointment to the highest court of the land.... Every judge brings values to the court and in close, hard cases those values can tip the balance on the meaning of the law or the facts before the court. Al Maddin was more than just an unlucky truck driver. He was a hardworking American entitled to justice in our courts.

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.

Yes, Democrats should filibuster Gorsuch. His record shows why. (Washington Post, 03/23/17)
James Downie,The Washington Post’s Digital Opinions Editor: Republicans’ unprecedented refusal to even give Garland a confirmation hearing would be reason enough for Democrats to filibuster President Trump’s nominee, Neil Gorsuch. But even if circumstances were normal, Democrats should be eager to filibuster Gorsuch anyway. Judge Gorsuch’s record suggests Justice Gorsuch would favor powerful interests over regular people — perpetuating a system that voters oppose. A survey of Gorsuch’s record shows that when he has broken with his colleagues, it is usually to favor businesses over workers. ... Gorsuch’s writings show a broad preference for corporations over consumers and regulators. ... Gorsuch’s record cuts against Americans’ civil rights as well. ... Gorsuch was deliberately chosen for his legal and political views.

The Gorsuch Confirmation – Day Four (American Constitution Society Blog, 03/23/17)
Mark S. Kende: a Democratic filibuster is completely justified by the outrageous refusal of the Republicans even to give President Obama’s nominee, the very distinguished Chief Judge Merrick Garland, a hearing.... Democrats have set an example of how not to be hyper-partisan and immoral. And yet Republicans still have had the chutzpa to say that a filibuster would be obstructionist.

Sen. Kamala Harris: Why I cannot support Judge Gorsuch (San Francisco Chronicle [CA], 03/23/17)
"President Trump’s nominee, Judge Neil Gorsuch, certainly has a paper resume that would impress legal scholars. But his rulings repeatedly have failed to achieve justice for all Americans.... The rest of Judge Gorsuch’s record also shows he’s willing to favor corporations over the American people. He believes companies can impose their religious views on employees and deny women birth-control coverage. And he has been hostile toward federal agencies that protect American workers and consumers.... Judge Gorsuch has consistently valued narrow legalisms over real lives. I must do what’s right. I cannot support his nomination."

Democrats are going to filibuster Gorsuch. It’s the right thing to do. (Washington Post, 03/23/17)
Paul Waldman: Everyone knows who Neil Gorsuch is and what kind of justice he’ll be. Democrats have tried to get him to admit it, knowing that he never will, while he pretends to have an open mind on everything and a judicial philosophy unsullied by any particular normative beliefs about policy. It’s an act, and it’s one that Republican nominees in particular have honed over the years: Claim you can’t say anything about past cases or present cases or future cases, and even if you could, you really have no opinions about anything. Or maybe you have a stray opinion here or there, but those opinions lay upon your conscience with all the weight of a few downy feathers, easily brushed aside when it comes time to apply the law and the Constitution. It’s utterly dishonest, and everyone knows it. Gorsuch was presented to Trump as a possible nominee by the Heritage Foundation; he was on its list not because he’s keen of mind and pure of heart, but because he’s a staunch conservative .... these are truly extraordinary circumstances. The Republicans’ refusal to allow Merrick Garland to get even a hearing to fill this seat was nothing short of a crime against democracy, a twisting of democratic norms beyond all recognition.

Apply that reasoning to Gorsuch (Dallas Morning News, 03/23/17)
Nancy Lea Paine, Letter to the Editor: Senate Republicans justified their refusal to give a confirmation hearing to Supreme Court nominee Judge Merrick Garland by arguing that Barack Obama had less than a year left in his presidency. In light of the FBI testimony presented at the House Intelligence Committee hearing, perhaps Democrats can make a similar argument against the confirmation of President Donald Trump's nominee, Judge Neil Gorsuch.