Editorials and Opinion
Judge Gorsuch's strict 'originalism' puts justice itself at stake (The Hill, 04/07/17)
Ken Levy: if the ratifiers' understanding of cruel and unusual applied only to physical suffering, not purely psychological suffering, then the question of whether 90 days of solitary confinement for simple battery is cruel and unusual admits of two possible answers: (a) a backward-looking originalist interpretation with an unjust result and (b) a forward-looking pragmatic interpretation with a just result.... my point, which I develop more fully in "Why the Late Justice Scalia Was Wrong: The Fallacies of Constitutional Textualism," was that textualism contradicts itself. While it says that we shouldn't make any assumptions that are not explicitly stated in the Constitution, this assumption itself is not explicitly stated in the Constitution.
Justice Gorsuch Ushers In a New Era (Bloomberg News, 04/07/17)
Prof. Noah Feldman: The confirmation of Neil Gorsuch after the rejection of Merrick Garland marks the new high-water mark in the overt, partisan politicization of the U.S. Supreme Court. After the Democratic Senate rejected Bork 30 years ago, President Ronald Reagan got to choose another appointee. After the Republican Senate refused to vote on Garland last year, President Barack Obama was denied the same chance.... I fully expect that, for the foreseeable future, if the president and the Senate majority don’t come from the same party, there will be no confirmations at all.
Filibuster or Bust: The GOP is dooming itself if it eliminates the filibuster. (U.S. News & World Report, 04/06/17)
Prof. David Faris: In fact, it is the GOP, and only the GOP, that has brought us to this low point in partisan relations. By using truly unprecedented stalling tactics to prevent Obama from filling court seats between 2009 and 2013, they forced Senate Democrats either to capitulate to GOP hostage-taking or to nuke the filibuster for District and Appeals Court nominees. Had Republicans fulfilled their legal duty to approve Obama's nominees in a timely fashion, we would not be having this conversation. Then they escalated the conflict by inventing a new rule that presidents can only nominate justices in the first three years of a four-year term, an ad hoc justification for institutional warfare that will surely be jettisoned if there is a vacancy in 2020 and Republicans still hold the Senate. And now, Republicans are poised to eliminate the filibuster for Supreme Court nominees.
GOP goes 'nuclear' and permanently damages Senate, Supreme Court (The Hill, 04/06/17)
Maria T. Cardona: Republicans went “nuclear” today by changing the procedures of the Senate in order to confirm Neil Gorsuch by a mere simple majority of senators instead of adhering to a 60-vote threshold needed to invoke cloture. ... Republicans only have themselves to blame and will be the sole owners of this sad legacy.... the wait time for President Obama‘s first-term circuit and district court nominees from nomination to confirmation was more than half a year, a record median wait time as compared to nominees under any other President.
If Democrats wanted to fill important vacancies on the nation’s critical appellate courts, changing the rules was going to be their only option. ... Unlike Merrick Garland, Neil Gorsuch is not a moderate, consensus candidate.
Going Nuclear Will Make Things Worse: Nixing the filibuster will deepen Senate partisanship. (U.S. News & World Report, 04/06/17)
Prof. Lauren Bell: Eliminating the supermajority cloture requirement, as Senate Majority Leader Mitch McConnell has indicated he will do in order to confirm Judge Neil Gorsuch to the U.S. Supreme Court, will further harm the Senate as an institution and reduce its capacity to function as an essential part of our government....Continuing to chip away at the minority party's rights in the Senate will not serve either party, or the country, well in the long run.
The Gorsuch filibuster is about far more than payback (Washington Post, 04/06/17)
E.J. Dionne Jr. column: At the root of this fight is a long-term conservative effort to dominate the Supreme Court and turn it to the political objectives of the right.
This is thus about far more than retaliation, however understandable, for the Senate Republicans’ refusal to give even a hearing to Judge Merrick Garland, President Barack Obama’s nominee for the seat Gorsuch would fill. Behind the current judicial struggle lies a series of highly politicized Supreme Court rulings.... Bush v. Gore had consequences for the court itself, because Bush got to pick two Supreme Court justices.... Roberts and Alito voted with the 5-to-4 majority in Citizens United that overturned decades of law and precedent to widen the gates to big money in campaigns. Then, in 2013, they were integral to another 5-to-4 decision, Shelby County, that gutted the Voting Rights Act. Many Republican-controlled states rushed in with new laws, including voter ID requirements, that impeded access to the ballot by African Americans and other minorities. You do not have to believe in conspiracies to see how Shelby County and Citizens United fit together. In tandem, they empowered the most privileged parts of our society and undercut the rights of those who had historically faced discrimination and exclusion. They also tilted the electoral playing field toward Republicans and the right.... From now on, conservatives must encounter tough resistance as they try to turn the highest court in the land into a cog in their political machine.
Bill Price: Sens. Manchin, Capito should vote no on Gorsuch (Gazette) (Charleston Gazette [WV] , 04/06/17)
Bill Price, Sierra Club: Judge Gorsuch appears to be as hostile to citizen enforcement as Scalia, if not more so. On three separate occasions, he has denied access to the courts for environmental groups to federal courts, relying on cramped views of what it takes to establish access to the federal courts. He has written about his disdain for public interest litigation, a dangerous view of the environmental laws that have safeguarded this country’s air, water and wilderness from devastating harms.
[Editorial] A sorry day for democracy and the high court (News & Observer [NC], 04/06/17)
"President Obama nominated a respected, moderate federal judge, Merrick Garland, 63, to fill the Supreme Court seat of Antonin Scalia, who died suddenly in February of last year. The then-president was doing his constitutional duty, and in Garland he chose an experienced judge who was hardly a liberal ideologue and clearly qualified for membership on the high court.... Republican senators in using the “nuclear option” of a majority-only requirement for approval, reject the very logic they used against Garland, that the people through their votes would let it be known what kind of justice they wanted. By that logic, the people wanted Garland, because three million more of them voted against President Trump than for him. This is a sorry day indeed for democracy, and Mitch McConnell, the hard-line Republican leader from Kentucky who signaled his ardent dislike for President Obama from the beginning of his two terms as the elected president of the United States, offers ridiculous logic for his maneuver.... The “norms” would have required a vote on Garland; the “norms” would have left in place the requirement that a nominee have 60 votes to avoid filibuster. McConnell is the one who “moved the goalposts,” and he knows it."
Do Republicans Have Amnesia Over How They Treated Merrick Garland? “We don’t conduct partisan filibusters of Supreme Court nominees,” said one GOP senator. (Huffington Post, 04/06/17)
Jennifer Bendery: There’s a surreal aspect to this week’s Senate confirmation fight over Supreme Court nominee Neil Gorsuch: The more reasons Republicans give for why he deserves a vote, the more they reinforce how badly they treated President Barack Obama’s pick for the court, Merrick Garland.... just swap in “Garland” for “Gorsuch” as GOP senators explain why Trump’s nominee deserves fair treatment.... They never gave him a committee hearing, yet some are mad that Democrats opposed Gorsuch in his. ... it was McConnell who led last year’s unprecedented and partisan effort to deny Garland a hearing or a vote ― a filibuster, in effect ― and argued that the next president should get to fill the court vacancy, even though Obama had a year left in his presidency.
Editorial: Mr. McConnell’s moment (Albany Times Union [NY], 04/06/17)
"So the burden is on Senate Republicans — whether to use power to further erode one of the last protections against the tyranny of the majority, or to resurrect the spirit of compromise.
That’s what is at the heart of the “nuclear option” threat as the Senate considers President Donald Trump’s nomination of Judge Neil Gorsuch to the U.S. Supreme Court. Yes, Republicans can stop a Democratic filibuster and confirm a Supreme Court nomination by a simple majority vote. But that would be a mistake.
Democrats are right to try to block Judge Gorsuch’s confirmation. He is not the neutral referee of the law that supporters portray him to be; he is a partisan loyalist picked by Mr. Trump from a list compiled by right-wing groups .... Beyond specific rulings, like his absurd opinion supporting the firing of a trucker who left his disabled rig rather than freeze to death, is the concern over Judge Gorsuch’s affinity for originalism .... McConnell has another option: leave the filibuster intact, and take Senate Minority Leader Charles Schumer up on his offer to work to confirm a more mainstream Republican nominee."
McConnell: ‘Nuclear option’ helps Senate. McCain: ‘Whoever says that is a stupid idiot.’ (Washington Post, 04/06/17)
Paul Kane: “Idiot, whoever says that is a stupid idiot, who has not been here and seen what I’ve been through and how we were able to avoid that on several occasions,” McCain said Wednesday, recalling past efforts to defuse these judicial confirmation wars. “And they are stupid and they’ve deceived their voters because they are so stupid.”... “This is a body blow to the institution, and I think we’re on a slippery slope,” McCain said.... Sen. Bob Corker (R-Tenn.), chairman of the Foreign Relations Committee, agrees with Lott’s prediction. In a little-noticed floor speech, Corker blasted unnamed senators who said the 2013 nuclear option by Democrats to end most filibusters on nominees and the pending Republican step were not bad for the Senate.... He recounted how, after Democrats first triggered the nuclear option to end filibusters on most nominees, the Senate practically stopped working.
“There were days — not days, months — where people who had normally worked with people on the other side of the aisle just kind of shut down. It was hard to believe the nuclear option had been invoked,” Corker said.
Now, the sides have changed. McConnell has gone from hating the filibuster (2005) to supporting it (2013) to again trying to abolish it (2017) — an evolving set of positions that correlate with which party had the majority.
Letter to the Editor, April 6 (San Francisco Chronicle [CA], 04/06/17)
Susan Wilder: I am opposed to Neil Gorsuch as a Supreme Court justice. While he appeared bland on TV, in real life his rulings reflect a very conservative, far-right perspective. ... Gorsuch is not a reasonable choice for the Supreme Court, and I am pleased that the Democrats are standing firm against his nomination.
Parents should be concerned about Gorsuch's opinions (Cincinnati Enquirer [OH] , 04/06/17)
Michelle Dillingham: Cincinnati families need to know that a judge who has consistently ruled against rights and protections for students with disabilities may be appointed to the Supreme Court, where the final judgment in all cases involving laws of Congress, such as IDEA, are decided.... Cincinnati families deserve a Supreme Court justice who will uphold the civil rights of children with disabilities, not rule against them.
[Editorial] Senate should first give Judge Garland a hearing (Anniston Star [AL] , 04/06/17)
"Garland never received a hearing or a vote. It’s like Senate Republicans went on strike for almost a whole year, refusing to do a job required by the U.S. Constitution.
The way forward that pays tribute to the Senate’s rules and procedures seems obvious. Before taking up Trump’s nominee, the Senate should give Garland a hearing and a vote before the full Senate. ... Senators of both parties who wish to avoid the nuclear option should press for a vote for Garland before taking up Trump’s nominee."
Editorial: ‘A body blow’ to the Senate (Addison Independent [VT], 04/06/17)
"Senate Democrats will oppose the nomination of Judge Neil Gorsuch to the U.S. Supreme Court for many good reasons. And if Senate Majority Leader Mitch McConnell, R-Ky., is to be believed, he will employ the “nuclear option,” perhaps forever changing the rules of the Senate to approve Gorsuch’s nomination by a simple majority vote. The Republican Party will then have successfully denied President Obama’s nomination of Judge Merrick Garland to the Supreme Court in an affront to Senate rules and tradition, while also changing Senate rules to put Trump’s first nominee onto the Court.
To those who say it’s no big deal and is a “good thing” to employ the “nuclear option,” as McConnell maintains, Republican Sen. John McCain had this response: “Idiot, whoever says that is a stupid idiot,..." ... this significant change in the nation’s political discourse and function has been the extremism of today’s Republican Party. It started most recently with Republicans filibustering almost all of President Obama’s appointees to his administration, not because of their qualifications or conflicts of interests or any valid concern, but simply to slow down his agenda. That prompted Senate Democrats to employ the “nuclear option” for Obama’s appointments .... To think that this further blow to the institution will be “good” is to live in a world of falsehoods, afraid to speak the truth of the harm that is being done by their own actions. It will be McConnell’s legacy, much as Sen. Joseph McCarthy is a footnote"
Kill the Filibuster, Kill Trust in the Court: Ending the filibuster over partisan bickering endangers the Supreme Court's independence. (U.S. News & World Report, 04/06/17)
Prof. Jamal Greene: the case for retaining the filibuster for Supreme Court nominees is straightforward. We rely on the nine justices of the Supreme Court to make dramatic pronouncements about our public life....If we are to grant a lifetime appointment to a human being to wield this kind of power, the least we should demand is that he or she receive bipartisan support. ... Party-line support is uniquely damaging for high court appointees.... judges cannot do their jobs without the confidence of the public.
Editorial: Civil Rights Act protects LGBT (Kokomo Tribune [IN] , 04/06/17)
"[A]n 8-to-3 decision Tuesday by the full 7th U.S. Circuit Court of Appeals in Chicago may have reframed the text to include protections for a previously unlisted group: LGBT employees.... Posner’s ruling in this case takes a broader interpretation of the law to account for the world we live in now. Like Scalia, Neil Gorsuch — Trump’s nominee for the open SCOTUS seat — is a strict constructionist. This means interpreting law exactly as written and nothing else. We believe Posner and the majority ruled correctly in this case. We hope the nation’s highest court will follow the same logic if this case reaches their chambers."
Tester: Gorsuch would not answer important questions (Missoulian [MT], 04/06/17)
Sen. Jon Tester, Guest column: After meeting with Judge Neil Gorsuch face-to-face, giving him a fair hearing and reviewing his qualifications, I cannot support his confirmation.... I cannot support a nominee who refuses to answer important questions.
With Gorsuch on the bench, I’m deeply concerned that dark money will continue to drown out the voices and votes of citizens, the court will stand between women and their doctors, and the government will reach into the private lives of law-abiding Americans.... not only does Gorsuch think corporations have the same rights as people, in Hobby Lobby he decided that the rights of a corporation outweighed the rights of Montana women.... Gorsuch has argued for a narrow interpretation of the Fourth Amendment which could subject Montanans to government overreach.
It's Hard Not To Hate Mitch McConnell: There's Main Street hypocrisy, there's Washington D.C. hypocrisy, and then there's Mitch McConnell in a category all of his own. (Daily Banter, 04/06/17)
Justin Rosario: On Thursday, McConnell finally took the penultimate step of stealing a Supreme Court seat from a Democratic president by doing away with the filibuster so the Democrats could no longer block the pro-corporate ideologue Neil Gorsuch. This move comes after McConnell refused for over 10 months to even hold hearings for Obama's nominee, the eminently qualified and very centrist Merrick Garland. Republicans also threatened to block any Justice then-presumed winner Hillary Clinton would nominate .... McConnell has been justifying his move to eliminate the judicial filibuster entirely because he previously forced the Democrats to eliminate it for federal judges: ... He is, of course, forgetting to mention that Republicans had made unprecedented, in over two hundred years of American history, use of the filibuster to block Obama's judicial nominees. And they did it under McConnell's direction
[Editorial] A death knell for bipartisanship (Sacramento Bee [CA] , 04/06/17)
"The U.S. Senate has long prided itself as a deliberative body, less partisan than the House and more devoted to consensus.
That tradition is in tatters after Republicans forced through a rules change Thursday so on Friday they can confirm Neil Gorsuch, President Donald Trump’s U.S. Supreme Court nominee. Instead of requiring a supermajority of 60 votes to cut off filibusters and move to an up-or-down vote, it now only takes a simple majority of 51 votes.
It’s called the “nuclear option,” and for good reason. It obliterated whatever bipartisanship was left, and the fallout will be felt for years to come. The rules change applies to future Supreme Court nominees, further politicizing the high court.... Republicans are more responsible recently.
They routinely blocked Barack Obama’s nominees for federal judgeships when Democrats controlled the Senate, so in 2013, then-Majority Leader Harry Reid of Nevada invoked the nuclear option for judicial nominees and executive appointments.
Then when conservative Justice Antonin Scalia died unexpectedly last year, Republicans stole the lifetime appointment from Obama."
Dark Justice: Gorsuch’s billionaire backers know what they are getting, and the American people should too (Huffington Post, 04/06/17)
Arn Pearson, People For the American Way: Judge Neil Gorsuch played a masterful game of hide-the-ball during his confirmation hearings .... Judge Gorsuch authored seven dissents in 2016 .... Those cases, along with his lengthy 2016 concurrence in Gutierrez v. Lynch—where he laid out his case for rolling back “Chevron” deference to government agency rules—let Gorsuch check off most of the boxes on the Right’s checklist for a Supreme Court nominee. ... Senate Republicans, backed by some very powerful special interests, blockaded Garland and are getting ready ram through Gorsuch, even if it takes a dramatic Senate rules change to do it.
They know perfectly well why, and American voters deserve to know too.
Gorsuch nomination (Capital Gazette [MD], 04/05/17)
Debra Connors, Letter to the Editor: Dear U.S. Sens. Ben Cardin and Chris Van Hollen:... Gorsuch's extreme record has left him short of the 60 votes traditionally required to close debate and vote on a Supreme Court nominee.
Senate Majority Leader Mitch McConnell wants to get this extreme nominee confirmed this Friday, before senators have to answer to their constituents over the upcoming recess. McConnell knows he's short of the votes he needs and wants to invoke the "nuclear option" and change 230 years of Senate precedent to eliminate the filibuster and ram Gorsuch through.... Encourage your Republican Senate friends to back away from the nuclear option. If their Supreme Court nominee is so extreme that he can't get to 60 votes, you don't change the rules, you change the nominee!
Letter: Mitch McConnell’s blame game (Salt Lake Tribune [UT], 04/05/17)
Kendall Robins: Senate Majority Leader Mitch McConnell is threatening to exercise the nuclear option if the Democrats filibuster the nomination of Judge Neil Gorsuch, and then says it will be on the Democrats if he does so.
That's just like a kidnapper threatening to kill the kid if the parents don't pay up, and then saying that the resulting murder would be the fault of the parents.
And, it's ironic that McConnell is still seething over the Democrats going nuclear on federal judge nominations, which was in response to McConnell clearly declaring 100 percent obstruction to anything and everything Barack Obama wanted to do, even if it was a good idea. And, it was McConnell who denied Obama, our duly elected president, any consideration at all for his nomination of Merrick Garland.
Chuck Grassley Gives a History Un-Lesson on Judges (People For blog, 04/05/17)
Paul Gordon: During the eight years President Clinton served in office, more than 60 of his circuit and district court nominees became victims of the Republicans’ “pocket filibuster.” ... George W. Bush took office, at which point Republicans spent eight years demanding that all judicial nominees receive floor votes.
But the minute it was a Democratic president again, the GOP went back into obstruction mode. ... Republicans exercised every procedural trick in the book to slow down the confirmation process for all judicial nominees, regardless of level (circuit or district), regardless of support from home state Republicans, and even regardless of a complete lack of opposition at all.... Republicans escalated their war even further when Grassley himself announced that he and his party would refuse to allow President Obama to fill any of the three vacancies on the 11-member D.C. Circuit. ... As Rep. Adam Schiff of California said: “When McConnell deprived President Obama of a vote on Garland, it was a nuclear option. The rest is fallout.”... Less than three months into the Trump administration, with only one nominee, Republicans are threatening to change the rules for Supreme Court nominees.
Opinion: Does Business Have a Pal in Neil Gorsuch? (National Law Journal, 04/05/17)
Judith Schaeffer: the “business community … sees much to like in Gorsuch’s record on the U.S. Court of Appeals for the Tenth Circuit,” and that in “addition to areas including arbitration and regulation, they see a judge who favors cramped interpretations of laws that are supposed to protect workers and others."
Polarizing politics begets ‘nuclear option’: Editorial (Poughkeepsie Journal [NY] , 04/05/17)
"President Obama picked an eminently qualified judge to serve on the high court, but Senate Republicans refused to extend Merrick B. Garland a confirmation hearing. They indefensibly let that linger for 293 days, leaving a Supreme Court seat vacant following the February death of Justice Antonin Scalia. Democrats haven’t forgotten. Some contend Republicans are essentially stealing Garland’s seat, and they add that Gorsuch has refused to address questions on a host of important issues ... Considering these are lifetime appointments involving some of the most powerful people in the world, retaining the 60-vote, supermajority threshold for Supreme Court nominees would make considerable sense. It provides, among other things, a measure of bipartisan validation in a country deeply divided."