Editorials and Opinion
My Name Is on the SCOTUS Gay Marriage Ruling and Neil Gorsuch Alarms Me (TIME magazine, 03/20/17)
Jim Obergefell, Op-Ed: Had it not been for the thorough hearing given to nominee Robert Bork in 1987, revealing his extremist views on civil rights issues such as women’s health and the scope of the First Amendment, Justice Kennedy may have never had the chance to make those legal decisions that made our nation a little more equal.... we must again demand that the next justice appointed to the Supreme Court of the United States continue to uphold our Constitution — including equal protections for LGBTQ people under the law. ... President Donald Trump's nomination for the Supreme Court, Neil Gorsuch, can't be entrusted with this most essential responsibility. Throughout his career, Gorsuch has been critical of the court decisions that say the Constitution protects individual choice in matters of intimacy
If Gorsuch is confirmed, the legitimacy of the US supreme court won't recover (Guardian News and Media, 03/20/17)
Russ Feingold: Republicans will attempt to complete their cynical political takeover of the US supreme court, launched last year when they failed to confirm or to even give a hearing to Judge Merrick Garland. ... Confirming Gorsuch would endorse and normalize unconstitutional political games.... And it is not just the supreme court that will be affected, as the strategy will be used to block appointments to lower courts.
Two questions senators should ask Neil Gorsuch about natural law: The Supreme Court nominee’s moral views seem closely tied to his jurisprudence (Economist, 03/20/17)
Democracy in America by S.M.: Gorsuch then stressed that his writings “have been largely in defence of existing law” and are “consistent with the Supreme Court’s decisions in this area and existing law in most places.”
A close look at Mr Gorsuch’s scholarship suggests these words of reassurance are less than reassuring. At several key points in “The Future of Assisted Suicide and Euthanasia”, his 2006 book, Mr Gorsuch shows quite clearly that his “personal” views on the ethics of end-of-life questions are closely tied to his sense of how the courts should handle lawsuits arising out of them. Though he says elsewhere that judges must “strive...to apply the law as it is”, not as they would like it to be, Mr Gorsuch’s natural-law lens appears inescapably coloured by ideological commitments.
We don’t need a truce in the judicial nomination ‘war.’ The Bork fight shows why. (Washington Post, 03/20/17)
Op-Ed by Mark Gitenstein: I served as chief counsel of the Senate Judiciary Committee during the Bork hearings, and I remain proud of my part in helping to defeat the nomination.... Bork, through his writings and his testimony, clearly signaled how dramatically he would shift the court to the right. Democrats didn’t “Bork” the nominee — he “Borked” himself. ... Bork was rejected by a vote of 58 to 42. ... the framers probably assumed that these struggles would be political. The first serious struggle over a Supreme Court nomination, George Washington’s choice of John Rutledge to be chief justice, was as political as you can get. Rutledge was defeated because of his position on the 1795 Jay Treaty with Britain.... Neil Gorsuch, should be questioned thoroughly by the committee on his jurisprudence. His opinions should be carefully examined by staff and senators. If senators are concerned about what Gorsuch says or even by his refusal to answer questions, they should vote accordingly.
The worst thing they could do would be to preemptively abandon their constitutional role by declaring a “truce.”
Neil Gorsuch — Judging Like It's 1868 (Law360, 03/20/17)
Priscilla J. Smith: there is a fiction emerging that "nice guy" Neil Gorsuch, President Trump’s nominee to the U.S. Supreme Court, is a moderate. Let’s be real: he’s no moderate.
Judge Gorsuch is a textualist in the vein of the late Justice Antonin Scalia and an original-application originalist. That means he applies the text of the 14th Amendment to the Constitution the way it would have been applied when adopted almost 150 years ago.... The Senate Judiciary Committee has an awesome task ahead of it. It should insist on answers to questions about Judge Gorsuch’s views of substantive due process and precedent. If Gorsuch is a textualist like he says he is, how can he uphold a constitutional right to birth control?
Senate Rightly Rejected Bork, Must Scrutinize All Supreme Court Nominees (Huffington Post, 03/20/17)
Op-Ed by Judith E. Schaeffer, Constitutional Accountability Center: Anyone with the twisted views of our Constitution that Bork had, including of the constitutional guarantees of equality under the law and the equal dignity of all persons, as well as of the civil rights laws implementing those fundamental rights, has no place on the Supreme Court.... The American people have a right to know, for example, whether, for Judge Gorsuch, constitutional time stopped in the late 18th Century, or whether he can demonstrate fidelity to the whole Constitution, including the Reconstruction Amendments adopted in the wake of the Civil War that wrote guarantees of equality under the law for all persons into our nation’s charter.
Why Gorsuch’s Alleged Sexist Classroom Comments Are So Troubling—and Revealing (Slate.com, 03/20/17)
Mark Joseph Stern: they are not out of line with Gorsuch’s own opinions, which devalue the profound, constitutionally protected connection between women’s individual autonomy and economic equality. Gorsuch has already admitted that he holds corporations’ “religious freedom” in higher esteem then women’s liberty. So it is not at all surprising to discover that he also values corporate interests over a woman’s right to be free from pregnancy discrimination.... He told his students that “many women” use companies “in order to have a baby and then leave right away,” and that companies have a right to “protect themselves” from this deceptive behavior. In doing so, he legitimized a grossly sexist and offensive myth
The High Court's High Stakes for Women: A former student's claims about Neil Gorsuch suggest a dangerous disregard for women's workplace rights. (U.S. News & World Report, 03/20/17)
Op-Ed by Emily Martin, National Women's Law Center: two former students of Supreme Court nominee Neil Gorsuch have alleged that in a "Legal Ethics and Professionalism" course last year, Gorsuch criticized female attorneys who become pregnant after accepting employment at law firms.... If Gorsuch in fact made these statements – and Sisk has provided documents showing she complained of these comments at the time, long before he was ever nominated to the Supreme Court – they are disqualifying in their disregard for women's equal treatment at work.
Does Judge Gorsuch Believe in Liberty and Equality for All? His selective approach to constitutional originalism raises serious questions about his respect for the Second Founding after the Civil War. (The New Republic, 03/20/17)
Op-Ed by David H. Gans, Constitutional Accountability Center: Not since the failed nomination of Judge Robert Bork in 1987 has a nominee been advanced because of his commitment to originalism. ... The problem is that Gorsuch’s record, reflected in his many opinions and non-judicial writings, suggests that he is a selective originalist, committed to following only some of the Constitution’s text and history—and, most damningly, ignoring the vital Reconstruction Amendments enacted after the Civil War.... His opinions, more often than not, take a narrow view of the Fourteenth Amendment’s guarantees and an outsize view of the respect due to the states—even though the whole point of the Fourteenth Amendment was to impose limits on the states and ensure that they respected the liberty, dignity, and equality of all.
The Gorsuch Nomination: A Setback for Human Rights (Huffington Post, 03/20/17)
Op-Ed by Prof. Bruce Hay: There are compelling reasons to have drummed up loud opposition to Gorsuch, notably the theft of this Supreme Court seat by unscrupulous Republicans and the fact that Gorsuch’s views are far out of the judicial mainstream .... The consequences for human rights and civil liberties of Democratic neglect of the judiciary – which includes not only allowing the GOP to steal Merrick Garland’s seat, but also leaving 25 percent of lower court seats unfilled at the expiration of the Obama presidency – have been dire.
GOP Belittled ABA Rating for Obama’s SCOTUS Nominees (People For blog, 03/20/17)
Paul Gordon: he ABA itself makes clear that its evaluation has nothing to do with a nominee’s judicial philosophy, an extremely important part of the Senate’s inquiry. the importance of the ABA rating is something that key Republicans have downplayed when considering the confirmation of a Democratic president’s Supreme Court nominee. That’s something to keep in mind when they play up the rating of a nominee from their party leader, Donald Trump.
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.
Don’t Be Fooled, Gorsuch Is a Gift to the Radical Right — And Must Be Stopped (Huffington Post, 03/20/17)
Op-Ed by Jessica Adair, Stand Up America: The well-funded radical right managed to obstruct the constitutional process and hijack the nation’s highest court in order to install one of their own for a lifetime appointment.
Judge Gorsuch would have the power to shape the confines of our rights and our democracy for generations. Fortunately, our senators have the power to shape his confirmation.
Burden of proof rests on Trump's Supreme Court pick, Neil Gorsuch (The Hill, 03/20/17)
Opinion by Elizabeth Wydra, Constitutional Accountability Center: Does Gorsuch have an ironclad commitment to rule according to the words and values enshrined in our Constitution and laws, or will he rule by the litmus tests that Trump and conservatives expect Gorsuch has already passed as a precondition of being nominated?
Former Gorsuch law student: He told class that women 'manipulate' employers' maternal leave (Daily Kos, 03/20/17)
Joan McCarter: A former student of Neil Gorsuch at the University of Colorado Law School has written to the Senate Judiciary Committee, describing a class lecture in which Gorsuch said that employers, and particularly law firms, should ask women job seekers their plans for having children in the future, suggesting that women are looking for jobs for the maternity benefits.... This new information—from just last year!—is extremely damning. For one thing, federal law says that these questions have no part in hiring decisions.
Maybe eight is enough: The case against Neil Gorsuch (The Hill, 03/20/17)
Op-Ed by Lee Saunders, AFSCME: In several cases, Judge Gorsuch has put a thumb on the scale in favor of powerful institutions and against vulnerable individuals seeking fair treatment from the system.
What Neil Gorsuch Can Learn From His Grandfather (Brennan Center for Justice at NYU School of Law, 03/19/17)
Andrew Cohen: John Gorsuch brought a level of empathy and compassion to the law. His contemporaries seem clear about that. There is no reason today to believe his grandson will follow that lead. He is not his grandfather’s man, at least not now, at least not yet. Instead, on the eve of his confirmation hearing, we appear to have before us yet another lawyer and judge with impeccable credentials and an impressive pedigree who plans to use his considerable intellectual gift to continue to favor the favored and afflict the afflicted.
Senate Democrats should grill Judge Gorsuch on antitrust. Here's how. (The Hill, 03/19/17)
David Goodfriend: this is about everyday Americans not getting ripped off.... Judge Gorsuch is an expert on antitrust law and policy but counts himself among the conservative jurists who, beginning in the 1970s, have sought to narrow the scope of antitrust analysis to economics-driven price inquiries and has ruled in favor of defendants far more often than plaintiffs in antitrust cases.
The Gorsuch Nomination And The Rule Of Law: Anyone who cares about the rule of law should oppose this nomination. (Huffington Post, 03/19/17)
Prof. Geoffrey R. Stone, Op-Ed: Chief Judge Garland should have been confirmed easily. Indeed, every Supreme Court nominee in living memory with anything approaching Chief Judge Garland’s impeccable credentials and record of moderation has been easily confirmed by the Senate, ... Senate Republicans, under the “leadership” of Senate Majority Leader Mitch McConnell (R-Ky), refused to confirm, or even to consider, Judge Garland’s nomination. This unconscionable maneuver was nothing less than a dishonorable and dishonest effort to steal this seat on the Supreme Court for the right wing.... This crass and unprincipled manipulation of our democracy should not be allowed to succeed.
[Editorial] 9 questions for Neil Gorsuch: Our view (USA Today, 03/19/17)
"There’s nothing to stop a judge from talking about his previous cases, his legal thinking or past Supreme Court rulings. In that spirit, here are some questions that the senators ought to ask and that Gorsuch ought to answer: ... This just scratches the surface of questions senators should ask Gorsuch, who, at 49, could influence the nation’s laws for more than three decades. Like all nominees, the judge deserves a fair hearing to determine whether he falls within the broad judicial mainstream and has a healthy respect for precedent. That standard will be impossible to assess if the witness ducks or parries every question he is asked."
What the Senate Should Ask Judge Gorsuch (Politico, 03/19/17)
Jeff Greenfield: "If a punishment like flogging or branding was a regular feature of 18th century criminal justice, would that mean a court could not forbid it under the Eighth Amendment today?”
Or, “Interracial marriage was outlawed by 16 states for a century after the 14th amendment and its equal protection clause was adopted. When the issue came before the Supreme Court in 1967, the ban was unanimously struck down. Did the court have to find that legitimizing interracial marriage was the ‘original intent’ of the drafters in order to reach its decision?”
Either question would make clear where originalism finds its most difficult challenge, and might help provide a clue to how Gorsuch works through such a challenge.
Editorial Ask Supreme Court nominee Neil Gorsuch the hard questions. It matters (Los Angeles Times, 03/18/17)
"Senators should engage the nominee in a serious discussion of his views about the Constitution, the role of precedent and how the court should adapt general principles to changing social and scientific circumstances. And Gorsuch should respond in kind by speaking as frankly as he can, demurring only about specific cases that are likely to come before him.... Democrats are justifiably angry that the Republican majority never allowed hearings or a vote on Merrick Garland, President Obama’s eminently qualified nominee to replace Scalia.... Scalia’s version of originalism led to him dissent stridently from rulings recognizing rights .... Those decisions were a natural outgrowth of earlier rulings in which the court secured other rights that the Constitution didn’t explicitly guarantee, such as a right to marry someone of another race (or the right to marry at all)"
In Gorsuch, Conservative Activist Sees Test Case for Reshaping the Judiciary (New York Times, 03/18/17)
Eric Lipton and Jereney W. Peters: “Make no mistake,” Mr. Leo said in a speech last month at the Ronald Reagan Dinner at the Conservative Political Action Conference. “How we deal with this vacancy now, the strength that we as the pro-Constitution movement demonstrate in this fight, will determine the extent to which we are able to both nominate and confirm pro-Constitution judges as we move forward.”
Mr. Trump already has 124 judgeships to fill — a backlog created by Senate Republicans who blocked the confirmation of many of President Barack Obama’s nominees. That includes 19 vacancies on the federal appeals courts.
Because of the age of many judges today, the White House expects between 70 to 90 appeals court positions to open up over the next four years. That would give Mr. Trump the opportunity to fill anywhere from one-third to half of all appellate seats