Editorials and Opinion
Trump may not last a year, his Supreme Court shouldn't last generations (The Hill, 03/18/17)
Lisa Graves and Arn Pearson, Center for Media and Democracy: What should the Senate do when the most unpopular president in recent history makes one of the most unpopular Supreme Court nominations in recent history?
“The Senate is not a rubber stamp, and the Constitution does not require the Senate to give a nominee a vote,” McConnell insisted last year. ... Let’s call that the “McConnell Rule” on judicial nominations and, out of courtesy, stick to it as long as McConnell controls the Senate.
The Senate should table Judge Gorsuch’s nomination to the Supreme Court until both political parties are prepared to search for a consensus candidate the American people can wholeheartedly support
GOP Has Already Given Americans Grounds to Reject Gorsuch: “He’s Like Scalia” (People For blog, 03/18/17)
Paul Gordon: Given the late justice’s three decades on the Supreme Court, “like Justice Scalia” is not just some nebulous term. His record gives a very definite meaning to the term and to the policy goals desired by the far Right.... we know that Justice Scalia’s approach to the law has harmed everyday Americans in a variety of ways, while ensuring that more power go to the most powerful corporations and individuals.
And Judge Gorsuch’s strongest supporters assure us that he’ll treat us the same way Scalia did. In fact, in some important ways, Gorsuch is further to the right than Scalia himself.
The conclusion isn’t hard to reach: Gorsuch should not be confirmed.
Amicus: Why It’s Worth Opposing Gorsuch (Slate.com, 03/18/17)
Dahlia Lithwick: After a successful blockade of President Obama’s Supreme Court nominee, the GOP-led Senate will convene hearings next week on President Trump’s pick for the court’s year-old vacancy. Considering all that has happened in the past year, how should Democrats handle the proceedings? On this week’s episode, we put that question to Sen. Sheldon Whitehouse (D-R.I.), a member of the Senate Judiciary Committee.
Questions of life and death for Neil Gorsuch (Boston Globe, 03/18/17)
Op-Ed by Michael S. Lewis: By singling out private persons, Judge Gorsuch implies a preference for the life-taking activities of government officials.... citizens should take note of fresh news stories about Gorsuch’s brief role as an attorney in the Bush Administration during a period of time where government lawyers played a substantial role in providing the legal justifications for enhanced interrogation techniques that would seem to conflict with Gorsuch’s moral position that “all human beings are intrinsically valuable.”
Gorsuch’s rejection of life-taking acts of private persons is doubly interesting because it stands to conflict with the approval of life-taking by private persons embedded in the Supreme Court’s interpretation of the Second Amendment.... I hope the Senate will ask these questions as Neil Gorsuch’s nomination is considered.
Court nominee Neil Gorsuch cherry-picks from Constitution (Waco Tribune-Herald [TX] , 03/18/17)
Op-Ed by David H. Gans, Constitutional Accountability Center: his record suggests that he is a judge who gives pride of place to the 1789 Constitution while ignoring the amendments added to the Constitution that limited the states, protected substantive fundamental rights and equality and gave Congress broad powers to help realize these constitutional promises.... He has written many opinions interpreting the Fourteenth Amendment but he has never written any opinions that discuss the text and history of the Fourteenth Amendment. ... This is a gaping hole for an originalist judge.
Respect for text and history has to be for the whole Constitution, not just for parts of it. In fact, his cases in this area, more often than not, give a narrow interpretation to the individual rights protected by Fourteenth Amendment and an outsized view of the respect due to the states.
Second, even where Gorsuch looks at text and history, he sometimes reaches results that ignore first principles. His attack on Chevron — one of his most widely noted opinions — is a case in point. In seeking to eliminate one of the most cited cases in American law, Gorsuch tries to constitutionalize something that’s just not in the Constitution.
Gorsuch Confirmation Process Too Important to Rush (Truthout, 03/18/17)
Arn Pearson: Recent revelations have thrown the White House and Department of Justice into turmoil and created a crisis of legitimacy for the Trump Administration that will spill over to the nation's highest court if there is a rush to judgment on Gorsuch's confirmation.
In addition, the Senate and the public lack key information about Judge Gorsuch needed to give his nomination thorough consideration.... they're attempting to rush the confirmation process of Neil Gorsuch to avoid public scrutiny of his extreme views and record.
Neil Gorsuch's Alarming Relationship With A Serial Voting Rights Misinformer (Media Matters for America, 03/18/17)
Julie Alderman: Newly released emails from President Donald Trump’s Supreme Court nominee, Judge Neil Gorsuch, evidence an amicable relationship between the judge and National Review contributor and discredited conservative media legal analyst Hans von Spakovsky. The relationship is a sign that Gorsuch could continue Trump’s assault on civil rights from the high court.
The important money in politics questions to ask Judge Gorsuch (The Hill, 03/18/17)
Op-Ed by Trevor Potter, Campaign Legal Center: Senators must push for Judge Gorsuch’s view of whether the constitution allows us to check the corrosive influence of money in our political system.... It is worrisome that Judge Gorsuch has expressed interest in providing a higher level of constitutional protection to a donor’s right to make political contributions than the court currently affords the right to vote.
Letter on Gorusch: Oppose Gorsuch (Wichita Eagle [KS] , 03/17/17)
Jane Byrnes: Supreme Court nominee Neil Gorsuch believes that the wealthiest should speak louder than the rest of us. We deserve a Supreme Court justice who shares our cherished democratic value of equality.
Urge our Kansas senators, Pat Roberts and Jerry Moran, to stand firm on the side of political equality and fairness by opposing Judge Gorsuch’s nomination.
Gorsuch’s Corporate Bias (Medium, 03/17/17)
Op-Ed by Prof. Erwin Chemerinsky: As a judge on the United States Court of Appeals for the Tenth Circuit, Neil Gorsuch’s opinions consistently have favored the interests of corporations over those of employees and consumers. Even when he is interpreting statutes that were meant to provide expansive protections for workers and customers, Judge Gorsuch construes the laws in favor of business. His rulings leave no doubt that if confirmed he will be a very conservative justice who will be strongly biased in favor of corporate interests.
Neil Gorsuch was instrumental in defending George W. Bush’s torture program (Center for American Progress, 03/17/17)
Kate Martin: As reported by the New York Times’ Charlie Savage, Supreme Court nominee Neil Gorsuch was “at the center of both litigation and negotiations with Congress” over the George W. Bush administration’s positions on “detainee abuses, military commissions, warrantless surveillance and its broad claims of executive power” during his tenure as a senior member of the Justice Department. .. the question isn’t whether Gorsuch will stick to his principles. The question is: what are those principles?
The “True Loyalty,” Political Connections, and Conservative Ties that Have Fueled Gorsuch’s Rise (American Constitution Society Blog, 03/17/17)
Christopher Kang, Guest Post: As Gorsuch began his effort to “be a full-time member of the team,” the way he started and then advanced his public service career raises troubling concerns regarding his nomination to the Supreme Court. ... Gorsuch developed talking points to defend the use of torture, or “enhanced interrogation.”...What did it take to convince the Heritage Foundation and Federalist Society?... When it comes to evaluating Judge Gorsuch’s adherence to the rule of law, I am at a complete loss for why his choice of which church to attend would need to be scrutinized at all—and I have experience evaluating and recommending hundreds of candidates to President Obama for potential judicial nomination.
But even more concerning, once they embarked on this line of questioning, what did it take to “conclude it was not a strike against him?”
Gorsuch’s Bush Administration Service Reveals Dangerous Views on Presidential Authority (Huffington Post, 03/17/17)
Op-Ed by Elliot Mincberg: A key question about the nomination of Neil Gorsuch to the Supreme Court is his views on presidential authority—will he defer to President Trump on controversial issues like Trump’s immigration ban and the use of torture? Recently released documents concerning his time as a key Justice Department political appointee in 2005-06 confirm earlier indications that the answer, unfortunately, is likely yes. Although the administration’s document production is woefully inadequate, what has been provided makes clear that Gorsuch was at the center of Bush administration unprecedented efforts to assert dangerously broad presidential power and to limit review by the courts.
Americans deserve independent pick for Supreme Court (Wisconsin Rapids Daily Tribune, 03/17/17)
Op-Ed by Jenni Dye, Stephanie Bloomingdale, Christine Neumann-Ortiz, Nicole Safar, Astar Herndon and Dana Schultz: The reward for stealing a seat on the Supreme Court ought not be the lifetime appointment of a right-wing judge who could shape the direction of the court for decades. ... the record reveals Judge Gorsuch is far from that, finding him to be far to the right on nearly every issue.
Neil Gorsuch was instrumental in defending George W. Bush’s torture program: What does that mean for the role of the judiciary in reviewing the president’s actions? (Think Progress, 03/17/17)
Op-Ed by Kate Martin, Center for American Progress: Supreme Court nominee Neil Gorsuch was “at the center of both litigation and negotiations with Congress” over the George W. Bush administration’s positions on “detainee abuses, military commissions, warrantless surveillance and its broad claims of executive power” during his tenure as a senior member of the Justice Department. Should Gorsuch be confirmed to the Court, he is likely to have to rule on the extent of such presidential powers.... While the documents about Mr. Gorsuch’s tenure at DOJ working on this case are still incomplete, they contain no indication that he disagreed with or questioned any of these radical legal positions taken by the administration.... the question isn’t whether Gorsuch will stick to his principles. The question is: what are those principles?
Neil Gorsuch’s Alarming Views on Antitrust and Monopoly: The Supreme Court nominee doesn’t seem to care about how concentrated economic power stifles fair competition and hurts average Americans. (Washington Monthly, 03/17/17)
Op-Ed by Sandeep Vaheesan: Not only did Gorsuch rule against Novell, but he went on to impose a near-impossible burden on antitrust plaintiffs.... At a time when the public has serious and growing concerns about the power of platform monopolists such as Amazon, Facebook, and Google, Gorsuch’s decision in Novell gives these titans broad power to squelch rivals and to extend their existing monopolies into adjacent markets. In his opinions, Gorsuch goes further than most of his judicial peers in his deference to monopoly and disregard for Congress’s original goals.... he has displayed no awareness of how concentrated economic power concentrates political power. He ignores the effects of monopoly on competitors and open markets. ... At a moment of historic economic and political inequality in America, it would be a grave mistake to ignore Gorsuch’s pro-monopoly views.a
In E-mails, Neil Gorsuch Praised a Leading Republican Activist Behind Voter Suppression Efforts: Gorsuch’s ties to Hans von Spakovksy suggest a hostility to voting rights. (Nation, 03/17/17)
Ari Berman: Few people in the Republican Party have done more to limit voting rights than Hans von Spakovsky. He’s been instrumental in spreading the myth of widespread voter fraud and backing new restrictions to make it harder to vote. But it appears that von Spakovsky had an admirer in Neil Gorsuch, Donald Trump’s nominee for the Supreme Court, according to e-mails released to the Senate Judiciary Committee covering Gorsuch’s time working in the George W. Bush Administration.... Given that von Spakovsky hailed Gorsuch as “the perfect pick for Trump,” it’s safe to assume he believes that the Supreme Court nominee shares his views. The Senate needs to aggressively question Gorsuch to see if that’s the case.
How the Democrats Should Fight Gorsuch’s Nomination (Washington Monthly, 03/17/17)
Op-Ed by Martin Longman: the members of the Senate Judiciary Committee should question the nominee closely about his views on antitrust law.... lifetime appointments deserve special scrutiny, and that they shouldn’t be made on the narrowest of partisan majorities.... When a president seeks to fill seats on district and appeals courts, he knows that he’ll need the support of the home state senators ... . the blue slip system is still in place and it provides moral guidance as well as an important precedent.
The second main principle that must be applied here is that the Republicans must not be allowed to effectively steal a Supreme Court seat without any consequences.... And if the Democrats put up some kind of faux-fight only to cave on the theft of this seat, they’ll not only buy themselves three or four decades more of Scalia-like jurisprudence on the Supreme Court, they’ll infuriate their base and show that they are so weak that they can be rolled, defeated and humiliated without the slightest downside for the Republicans.
Is Gorsuch an originalist? Not so fast. (Washington Post, 03/17/17)
Op-Ed by David M. Dorsen: Because a judge on a lower federal court is constrained by Supreme Court precedent, his judicial opinions are not a good measure of his judicial philosophy. It is when he is free to speak his mind, such as in a book or an article, that his jurisprudence reveals itself. Gorsuch proclaims himself an originalist.... Gorsuch’s originalism ignores the enormous problem of ascertaining what the law and practice were around 1790. .... Gorsuch does not even mention the problem of choosing between the views of the two most influential originalists in history. Scalia’s version of originalism led him to write 135 liberal opinions. Thomas disagreed with Scalia on half his liberal opinions .... We need Gorsuch to explain his originalism and what that would mean for the Constitution as we know it.
Questions for Judge Gorsuch (Just Security, 03/16/17)
Prof. Jennifer Daskal: Judge Gorsuch has acknowledged playing a significant role in at least five key cases during his two years at the Justice Department that involved efforts to defend and shield from review detainee abuse, warrantless wiretapping, and the expansive use of the FBI’s national security authorities. In addition, Judge Gorsuch was actively involved in policy discussions regarding the contours of the Detainee Treatment Act of 2005, which among other things stripped Guantanamo detainees of the ability to bring habeas challenges their detentions. (These habeas-stripping provisions were eventually declared unconstitutional by the Supreme Court.) The specifics of Judge Gorsuch’s advice and role in these matters, as well as his views now, should be probed further.
As Trump boasts about his Muslim ban, the courts use his own words against him (Washington Post, 03/16/17)
Op-Ed by Sarah Posner: On Monday, the Senate Judiciary Committee begins confirmation hearings on Trump’s nomination of Neil Gorsuch to fill the late Supreme Court Justice Antonin’s Scalia’s seat. If senators do not question Gorsuch about the independence of the judiciary in light of Trump’s efforts to undermine it, they will be making a mockery of the process and the institution.
Senators Must Ask Gorsuch If He Will Force Americans into Arbitration (Center for American Progress, 03/16/17)
Joe Valenti and Rebecca Buckwalter-Poza: the Senate must ask Judge Gorsuch about his views on arbitration to determine whether he will put big business ahead of Americans’ constitutional right to a trial by jury. ... Gorsuch has consistently upheld arbitration even in flawed contracts. ... Gorsuch’s prior ruling on the NLRA, his aversion to deferring to agencies, and his affirmation of the FAA and arbitration suggest his confirmation would mean that the Court will continue permitting forced arbitration to spread.
Billions in Campaign Spending at Stake in Hearing on Trump’s Supreme Court Pick (American Constitution Society Blog, 03/16/17)
Guest Post by Adam Lioz, Demos: The ninth justice will help determine whether wealthy donors continue to drive our major policy decisions, or whether we can instead finally build a democracy where the size of our wallets no longer determines the strength of our voices.
Meat, booze and the bench (Iowa City Press-Citizen, 03/16/17)
Sam Osborne, Letter to the Editor: Gorsuch held in his judgment in the case of Burwell v. Hobby Lobby Stores that on the grounds of an employer's religious freedom, such an employer was entitled to withhold compensatory payment for an employee’s coverage of birth-control contraception because the employer thought it sinful. How stands Gorsuch on an equally devoted vegetarian employer having a right to withhold any portion of compensation to an employee that would go to the purchase of meat, or a teetotaler withholding from the purchase of alcoholic spirits?
One who finds such comparisons ridiculous had best understand how ridiculous one person’s religious convictions can appear to another and why matters involving the exercise of one’s own conscience had best be kept to the burden of oneself and out of the law of the land
Gorsuch endorsement disappointing (Missoulian [MT], 03/16/17)
Molly Bradford, Letter to the Editor: As the co-founder of Missoula-based technology company Gatherboard, I was disappointed to see the Montana Chamber of Commerce’s endorsement of President Trump’s Supreme Court nominee. Judge Neil Gorsuch’s record does not represent the best interests of my business. I encourage U.S. Sens. Steve Daines and Jon Tester to take a hard look at Gorsuch’s record.
Like many business owners, I’m wary of being forced to sign binding arbitration agreements imposed by giant companies in order to conduct business. ... the trend, which Gorsuch apparently supports, is toward forcing individuals to go to arbitration rather than before a court to resolve disputes with massive corporations.... it appears that he’s only for giant corporations, not regular business people and entrepreneurs. Montanans do not believe corporations are people, and we expect our senators to support justices that don’t either.
Letter to the Editor on Gorsuch Supreme Court nomination (Los Angeles Times, 03/16/17)
Ron Ellsworth: There is only one question the members of the Senate Judiciary Committee need to ask federal appeals court Judge Neil Gorsuch to determine how he will approach his job on the Supreme Court: Does he agree with an interpretation of the Constitution by which the advice and consent clause of Article II, Section 2, was ignored for nearly a year in order to prevent a sitting president from having his own nominee heard for a seat on the Supreme Court?
If he answers forthrightly that this was a regrettable and unprecedented disregard for the plain language of the Constitution, we will know that we have a person of honesty and integrity for the court. If he defends the tactic or avoids answering the question, we will know we have a right-wing shill for the seat.
Next Week's Supreme Court Confirmation Hearings Will Be a Test for Democrats: Will members of the Senate Judiciary Committee stand up to Neil Gorsuch, or let Trump radicalize the Court for decades to come? (Rolling Stone, 03/16/17)
David S. Cohen: this isn't how anyone thought things would play out exactly one year ago, when President Obama nominated Merrick Garland to fill the Supreme Court seat left vacant by the late Antonin Scalia. However, through an audacious and historically unprecedented act of grand theft judiciary, the Republicans stole the seat out from under the Democrats and now have the chance to put a radical, young conservative on the Court for the next several decades.... Democrats could signal they're willing to stand up to Gorsuch and Trump if they drill deep into particular aspects of his philosophy, such as whether he really believes the Constitution should be interpreted based on how it was originally understood. After all, a real originalist would have to take unpopular positions, such as that the Constitution does not protect women from discrimination and that states can ban interracial marriage. A principled originalist would also have to take positions that are opposite current conservative orthodoxy, such as that affirmative action is allowed and that corporations have no speech rights. The Democrats also could signal opposition by grilling Gorsuch about Trump attacking the judiciary, and whether he thinks the Senate's inaction on Garland's nomination was consistent with constitutional norms.
Beware logic of ‘strict constructionism’ — it defended slavery (Chicago Sun Times, 03/16/17)
Op-Ed by Phil Kadner: President Trump touts his Supreme Court nominee, Neil Gorsuch, as a strict constructionist, a highly valued quality in the eyes of conservative Republicans. Yet, it’s sort of like saying this fellow who will stick to his principles no matter how awful the outcome. A classic example of taking it too far was the case of Dred Scott, a U.S. Supreme Court decision so awful it paved the way for Civil War.
Judge Gorsuch believes in the sanctity life. How will that apply to gun suicides? (Bangor Daily News [ME], 03/16/17)
Op-Ed by Peter Sly: The means used for suicide matters. Unlike other methods of killing yourself, a gun is easy to use, quick and usually effective.... Research shows that a handgun in your home increases the risk that a family member will commit suicide. ... Gorsuch criticizes the rationale for assisting suicide that rests on “the theory of moral autonomy and its message of individualism.” Those arguments are akin to those heard in Second Amendment dialogues.... serious harm falls on the suicide victim’s family, so Judge Gorsuch rejects the “assisting autonomy” justification, invoking Thomas Jefferson’s focus on family harm. ... In his book, Judge Gorsuch argues that assisting or facilitating a suicide should be considered illegal, except when end-of-life medical directives are clear. The assistant is an “accessory before the fact” for the death and resulting family trauma. Thus, accessory liability should attach to a gun owner who loans a pistol to her suicidal friend. This argument also is applied to unsecured household guns. Should the law require disclosure of the suicide risk to a family with an unsecured household gun?... It could be argued that government actions, including the 2008 Heller and 2010 McDonald Supreme Court decisions, facilitate the gun suicide epidemic by fostering guns in the home.