Editorials and Opinion
How to End the Politicization of the Courts (New York Times, 04/04/17)
David Leonhardt, Op-Ed Columnist: Republicans have taken a much more aggressive, politicized approach to the courts than Democrats. The evidence:
Republicans have been bolder about blocking Democratic nominees than vice versa.... The gap between the parties would be even larger if Democrats hadn’t eliminated the filibuster on lower-court nominees in 2013, allowing Barack Obama finally to fill more judgeships. Even so, Trump has inherited a huge number of vacancies.... Republican nominees have been less centrist than Democratic nominees.... The Republicans’ strategy has been straightforward. They have tried to deny Democratic presidents a chunk of judgeships, hoping the nominations will roll over.... The strategy reached its apex last year, when the Senate blocked Obama from filling a Supreme Court vacancy, even with the highly qualified, and notably moderate, Garland. It was unprecedented. Republicans set out to flip a seat and succeeded. Now the Senate is preparing to confirm Gorsuch, likely to be another historically conservative justice.... Democrats are right to force McConnell to be the one who takes the partisan step of eliminating the Supreme Court filibuster. Likewise, Democrats should be aggressive in blocking Trump nominees to lower courts.... The country won’t return to a less politicized judiciary until both parties have reason to want it.
Planned Parenthood exec: Gorsuch is a poor choice: Be Fearless (Colorado Springs Independent, 04/04/17)
Sarah Taylor-Nanista: Our opposition is on behalf of our clients – as a health care provider to tens of thousands, we believe that Judge Gorsuch has taken active stands that give corporations religious rights over individual’s access to birth control (Hobby Lobby v. Sebelius and Little Sisters of the Poor Home for the Aged v. Burwell). He has refused to answer crucial constitutional questions or elaborate on his judicial philosophy during his hearing in the Senate.
Commentary: Maine Sen. Angus King must oppose Gorsuch confirmation to Supreme Court: Judge Neil Gorsuch comes from the corporate world and has long demonstrated a pro-corporate bias.. (Portland Press Herald [ME] , 04/04/17)
ROBERT A.G. MONKS: three out of four voters (77 percent) want the Senate to reject any Supreme Court nominee who will help the wealthy and privileged wield more power in our elections. Every indication is that President Trump’s nominee for the nation’s highest court, Judge Neil Gorsuch, will do just that. Gorsuch comes from the corporate world and has shown a consistent pro-corporate bias cloaked in a cold judicial calculus that would make cost-benefit ratios the language of the land, with little place left for human concerns.
It’s no wonder then that dark money groups, financed by secretive billionaires, have spent $17 million to blockade Judge Merrick Garland’s nomination and ram through Gorsuch – a man pre-selected by the right-wing, billionaire-backed Federalist Society.... I’m glad King is taking on this important issue through legislation, but if he wants to act right now to make sure our elections are transparent and accountable, his best opportunity is to oppose Judge Neil Gorsuch’s confirmation to the Supreme Court and support a 60-vote standard for his approval. Both Gorsuch’s record on money in politics and his answers during his confirmation hearing reveal a troubling disregard for common-sense campaign finance laws, especially in the area of transparency in political spending.
Condemnations of the Nuclear Option, Even in Red States (People For blog, 04/04/17)
Paul Gordon: As Mitch McConnell decides whether to try to exercise the nuclear option, influential newspapers across the country—even in the reddest of red states—are urging Senate Republicans not to take that path. This includes newspapers that have endorsed Gorsuch but would rather see him replaced as the nominee than be confirmed through a partisan change in Senate rules.... As all these editorial boards say, exercising the nuclear option would do immense damage to the nation.
Benson: Take the Gorsuch bull by the horns (Arizona Republic, 04/04/17)
Steve Benson, Arizona Republic cartoon: He may act coy, but Democrats see the real Neil Gorsuch: ... Republicans have threatened to go nuclear to put their raging bull into the Supreme Court's china shop.
Filibuster Gorsuch, for children’s sake (Sacramento Bee [CA] , 04/04/17)
Linda Ellis, Letter to the Editor: Past articles and interviews showed him to be quite opinionated about corporate proceedings and the Constitution; however, in the congressional interviews he was evasive to the point that he did not relay a sense of nonpartisan honesty.
Maine Sens. Should Oppose Gorsuch (Times Record [ME], 04/04/17)
Lisa Wesel, Letter to the Editor: I am writing to strongly urge senators Collins and King to vote against the confirmation of Neil Gorsuch to the Supreme Court. We need a Supreme Court justice who will defend the rights of those who cannot speak for themselves—students with disabilities... While Gorsuch was testifying at his own confirmation hearing, the Supreme Court unanimously overturned one of his most egregious rulings: that public schools need only provide disabled students with educational progress that is “barely more than de minimis,” meaning slightly more than none at all.
Letter to the editor: For many reasons, Judge Gorsuch deserves to be filibustered (Portland Press Herald [ME] , 04/04/17)
Toby Hollander, Esq. I write to support a filibuster of the nomination of Judge Neil Gorsuch to the Supreme Court, both because a filibuster is appropriate and because, in my view, Judge Gorsuch is not qualified .... First, this nomination was “stolen” from the previous president by Sen. Mitch McConnell, who refused to even give Judge Merrick Garland a hearing or a vote.... Neil Gorsuch is also a judge who obviously lacks even an ounce of compassion. In the “frozen trucker” case, he justified the firing of a trucker who drove himself to safety in subzero (i.e., life-threatening) temperatures .... He did the same thing with disabled children, ignoring the intent of a statute that is designed to provide a reasonable education for children with disabilities.
Editorial: Toomey’s rule change proposal threatens bipartisanship (Pitt News [PA] , 04/04/17)
The Pitt News Editorial Board: If Congressional Republicans thought they had gained the power to disregard the rules with their victories in last November’s elections, they couldn’t have been more wrong.
Sen. Pat Toomey, R-Pa., just signed onto a rules change to the Supreme Court nomination process that ... will likely harm both parties. The Pennsylvania senator announced last week at a press conference that he would support a move to modify the upper Congressional chamber’s rules in order to confirm Neil Gorsuch, President Trump’s nominee for the Supreme Court .... The GOP notably refused to consider Merrick Garland last year for Scalia’s seat. However, Senate Republicans were using this tactic of ignoring nominees long before they won control of the chamber. The GOP’s efforts to block Obama nominees to lower federal judgeships led to Senate Democrats in 2013 removing the procedural rule requiring a 60-vote supermajority to confirm presidential nominees to these positions.
Despite this change, more than 10 percent of these judgeships are now vacant, in large part because Democrats in the Senate have not held a 51-vote majority since the 2014 midterm elections.... a change to a 51-vote majority rule would erode several elements of the Supreme Court nomination and confirmation process that are vital to the institution’s integrity. Given Supreme Court justices’ power and long-term lengths, it’s important that individuals selected to be added both have majority support and appeal at least somewhat to citizens on both the left and right.... Toomey’s signing on to this proposed rules change is a short-sighted, lazy attempt to avoid doing the work of gaining bipartisan support for his party’s nominee, and will only contribute to the hyper-partisan atmosphere growing more and more omnipresent in Washington, D.C. If he is concerned about the integrity of the institution in which he serves, he will withdraw his support for this proposal.
Letter: Gorsuch has record against rights of people (Coloradoan, 04/04/17)
Mary Roberts, NOCO NOW: Neil Gorsuch’s judicial record shows he has a long history of hostility towards the claims of workers, consumers, children, immigrants, LGBTQIA people, incarcerated people, people with disabilities, and others seeking protection from the privileged and powerful.
Letter to the editor: Sixty-vote rule on court nominees provides essential balance (Portland Press Herald [ME] , 04/04/17)
Sharon McDonnell: Given the deeply partisan judicial record of Neil Gorsuch, President Trump’s nominee for the Supreme Court, our senators, Susan Collins and Angus King, should reject his nomination and call for a new nominee or consider Judge Merrick Garland. King should join a filibuster, and Collins should, at the very least, reject efforts to change the cloture rule requiring 60 votes to end debate on Supreme Court nominations.... Gorsuch ruled that a company was in its rights to fire a trucker because he made a choice to avoid potentially freezing to death; he denied the right of a student with autism to get the educational support he needed; and he’s argued for a judicial philosophy that would make it harder for agencies to enforce environmental laws and other statutes.
Given this record, Senate Democrats are warranted in their plans to filibuster.... the moderate thing for Collins to do would be to vote against this “nuclear” rule change.
How Gorsuch Could Pull the Eight Other Justices Rightward (New York Times, 04/04/17)
Justin Wolfers: If Judge Neil Gorsuch is confirmed to the Supreme Court, he will become not only the ninth vote in a divided court but also a new colleague with the potential to move his eight peers in a conservative direction. A compelling new analysis suggests that this kind of peer effect may even be more consequential than a justice’s own vote.
This means that the stakes over who fills the vacancy left by the death of Antonin Scalia are higher than is widely understood.
Letter: A question hangs over Neil Gorsuch: Is he fair? (Chicago Tribune, 04/04/17)
Joe English: There is no question Gorsuch is conservative. But thoughtful?
Of the seven judges who ruled in the case of Alphonse Maddin, only one — Gorsuch — ruled against him. ... Is it fair to expect a truck driver to freeze to death? Is it thoughtful?
Gorsuch does not have the judgment to sit on our nation's highest court.
A Supreme Mistake in the Making: By breaking the Democrats' filibuster of Neil Gorsuch, Republicans would hurt the country and themselves. (U.S. News & World Report, 04/03/17)
Robert Schlesinger | Managing Editor for Opinion: last year Republicans stopped a qualified nominee – Judge Merrick Garland – simply because they had the power to do so.
They conjured up ridiculous excuses, but it was a simple power play: The GOP didn't want to confirm President Barack Obama's nominee .... Removing the filibuster for the high court reduces the incentive for presidents dealing with a Senate controlled by their own party to ever nominate a moderate justice.... the time will come again when they control neither the White House nor the Senate and they are virtually guaranteeing that a future Democratic president will put someone far more liberal on the court than if the filibuster remains in place.... If only there was some way that Republicans Corker and Graham could do something to stop the filibuster from being ended. Oh wait, there is: Vote to keep it and persuade one other Republican to do so; then work to get a majority bloc of senators to acknowledge that the Garland precedent was a major blunder which cost both parties and should not be repeated. And then wait for Trump to nominate a milquetoast moderate to the Garland seat.
Gorsuch filibuster would be good for Democrats (CNN, 04/03/17)
Prof. Julian Zelizer: Senate Democrats have good reason to move forward with a filibuster. Indeed, this could turn out to be a defining moment for the party in its struggle against the Trump presidency. Simply in terms of principle, Democrats could rest assured that they would not be the party responsible for breaking the Supreme Court nomination process. That already happened when Republicans refused to even hold confirmation hearings for former President Obama's Supreme Court nominee Merrick Garland on the bogus grounds that the "next president," who would start his term many months later, should decide whom to pick.... If anyone was capable of making sure the process did not break down beyond repair it was President Trump. Had he demonstrated some genuine independence and sent a moderate nominee to the Senate, instead of a right-wing judge who pleased the evangelical right and anti-regulatory business conservatives, he could have made it difficult for Democrats to refuse the confirmation.
The Senate should reject the nomination of Judge Neil Gorsuch (Pittsburgh Post-Gazette [PA], 04/03/17)
Rachel Schlosser, Letter to the Editor: Judge Gorsuch ruled, over the disagreements of an impartial hearing officer, an administrative law judge and a lower federal court, that the school district had to provide Luke only a minimal education, despite the law requiring that children with disabilities must have access to a meaningful education.
At the very moment Judge Gorsuch was testifying, the Supreme Court issued a unanimous rebuke to Judge Gorsuch’s narrow approach, ruling in a similar case, Endrew F. v. Douglas County School District, that “it cannot be right.”
Judge Gorsuch is more dangerous than he appears (Boston Globe, 04/03/17)
Column by Nancy Gertner, a retired federal judge & professor at Harvard Law School: He is Judge Neil Gorsuch and he may soon be on the Supreme Court. Don’t be fooled. His approach is not neutral, not required by the law, andfar out of the mainstream. ... his approach could gut health and safety and antidiscrimination laws.... if Congress hasn’t directly addressed the precise question, courts are not supposed to invent their own. Expert agencies fill the gap. But Gorsuch rejects all that.... If this approach were accepted by other justices it could gut major health and safety and anti-discrimination legislation. Worse, Judge Gorsuch would be doing this with the false patina of neutrality, claiming it was based on a restrictive view of judging rather than precisely the opposite.
Gorsuch Can't Be Independent While Connected to Conservative Supporters (People For blog, 04/03/17)
Sarah Lobe: Regardless of how reluctant Gorsuch is to talk about his connection to right-wing, conservative groups, Gorsuch is connected to them because they chose him as the Supreme Court nominee through an outsourced selection process and because they launched a multi-million dollar campaign to support his confirmation. Gorsuch, however, avoided important questions about how, as a Supreme Court justice, he would make decisions independently from those supporters.
Republicans Threaten To Use Nuclear Option On Gorsuch, Media Blame Democrats (Media Matters for America, 04/03/17)
Research by Timothy Johnson: Media figures, many of them conservative, are pushing the false talking point that Senate Democrats are to blame for Senate Majority Leader Mitch McConnell’s threat to change the rules and allow Supreme Court nominee Neil Gorsuch to be confirmed by a simple majority vote. In fact, past Senate rule changes effectuated by Democrats have not applied to Supreme Court nominees, and they were made in response to historic GOP obstruction of noncontroversial Obama nominees. Gorsuch, on the other hand, is considered to be a highly ideological nominee who falls to the right of Antonin Scalia.
Letter to the editor: Sen. Collins ought to look elsewhere for legal advice (Portland Press Herald [ME] , 04/03/17)
Nicole Boucher & Karen Burke: Rather than coming forward as the moderate voice she claims to be, Maine Sen. Susan Collins recently took to the Senate floor in generous support of Supreme Court nominee Judge Neil Gorsuch, buttressing her position with this remark: “I have also received a letter signed by 49 prominent Maine attorneys with diverse political views, urging support for Judge Gorsuch’s nomination.”
Mainers for Accountable Leadership has looked into those 49 lawyers and can report on just how diverse their views are:...Finally, and importantly, only five of these 49 attorneys are women.
In a weak effort to support her own endorsement of an ultra-conservative to the Supreme Court, Collins provides us with an obviously solicited letter signed by a very small group of partisan lawyers.
Mitch McConnell’s Nuclear Trigger Finger (New York Times, 04/03/17)
Adam Jentleson, Op-Ed: Going nuclear, or changing Senate rules to make a Supreme Court confirmation possible with a simple majority, would be a hugely disproportionate response to reasonable Democratic opposition and will expose Mr. McConnell’s much-ballyhooed “institutionalism” as the fraud it has always been.... when Democrats eliminated filibusters for most presidential nominations — going nuclear themselves — in 2013, they did so in the face of obstruction on a far greater scale than anything Mr. McConnell has faced as majority leader. ... Second, even after Republican obstruction had become a sad fact of Senate life, Senator Harry Reid tried for years to avert the nuclear option.
Valdez: How Democrats can win by losing on Gorsuch (Arizona Republic, 04/03/17)
Linda Valdez, column: So what if Senate Majority Leader Mitch “make Obama a one-term president” McConnell pushes the nuclear button?
McConnell is the same guy who announced within hours of the death of Antonin Scalia that he would refuse to hold Senate hearings on any Supreme Court nominee from President Obama. Any nominee. ... What happened to President Obama’s Supreme Court nominee Merrick Garland was shameful and unjustified.
Garland was highly qualified. He was moderate.... The seat was stolen from Obama just as surely as any bully steals the younger kid’s lunch money.
Democrats shouldn’t let that go....Democrats should not change their opposition.... you can’t be empowered without a spine. Nor is there any reason to think Republicans won’t use the nuclear threat again if it works this time.... those objections matter. Principles matter.
Montini: Man up, Sen. Flake, admit Republicans are sticking it to Democrats (Arizona Republic, 04/03/17)
EJ Montini: Republicans control the U.S. Senate. Last year they stuck it to Democrats when they refused to allow President Barack Obama’s nominee to the U.S. Supreme Court, Judge Merrick Garland, to receive a hearing. Let alone a vote.
Now, they’re going to stick it to Democrats again by exercising what is called the “nuclear option.” It will end the long-standing filibuster rule, which is responsible for forcing some measure of civility and compromise in the Senate.... Flake again whined on Monday about how he wished Democrats would not attempt to block President Donald Trump's Supreme Court nominee Neil Gorsuch.
He told The Arizona Republic’s Dan Nowicki, "Later this week, we'll likely be forced with the prospect of changing the rules. I think we shouldn't be here." Not true. He and his fellow Republicans won’t be FORCED to do anything.
They will exercise the nuclear option because they want to. Because they can.... Obama's choice, Judge Garland, who never got a vote because Flake and friends wouldn’t let it happen. It was a straight-on power play. School yard bully stuff.
Gorsuch May Be Trump's Last 'Well Qualified' Judge (Bloomberg News, 04/03/17)
Prof. Noah Feldman: In the abstract, there’s nothing wrong with the decision by Donald Trump’s White House to stop the practice of giving the American Bar Association access to its judicial nominees in order to rate them. But in practice, the decision is scary and hypocritical -- because the administration waited until after the ABA gave Supreme Court nominee Neil Gorsuch its highest rating before making it.
That’s frightening because it implies that Trump’s future court nominees will be the kind of people who have no chance at the coveted “well-qualified” rating. And it’s hypocritical because it makes it pretty clear that the administration gamed the ABA, taking advantage of its objective assessment of Gorsuch before rejecting the very vetting to which it subjected the nominee.
The ABA has a special place in assessing nominations for federal judges, a practice that began in Dwight Eisenhower’s administration ... It’s particularly outrageous that White House counsel Donald McGahn would pick the current moment to make the announcement. His letter to the president of the ABA is a masterpiece of smarmy hypocrisy.
Neil Gorsuch got where he is because of a form of affirmative action (Washington Post, 04/03/17)
Prof. Richard L. Hasen: Judge Neil Gorsuch, whose nomination to the Supreme Court is expected to be voted on by the Senate Judiciary Committee on Monday, is an affirmative action baby. But there’s no reason to believe that if he’s confirmed, his rulings on the high court would reflect the fact that he did not get where he is today solely based on his merits — or extend to others the benefit of a helping hand.... Despite Gorsuch’s background of getting a helping hand, though, I have no confidence that he would see the positive side of extending those benefits to African Americans, many of whose ancestors were slaves in the United States and who are still working to overcome more than a century of discrimination once slavery ended.
BEHIND NEIL GORSUCH’S NON-ANSWERS: Every sign suggests that he would be at least as conservative a judicial activist as Samuel Alito. (New Yorker, 04/03/17)
Jeffrey Toobin: Gorsuch portrayed himself as a kind of judicial automaton, obligated to pay mindless obeisance to the Court’s prior rulings. This interpretation of the role of Supreme Court Justices is, to put it charitably, incorrect—they can and do overturn their earlier holdings. And Trump didn’t nominate Gorsuch simply because he knows how to follow precedent. He nominated Gorsuch because his career resembles a lab experiment synthesizing every trend in modern conservative thought.... His predilection for employers over employees is such that it yielded a circuit-court opinion of almost Gothic cruelty. ... the Court unanimously rejected one of his holdings in the Tenth Circuit, ruling that it denied adequate educational opportunities to students with disabilities. Every sign suggests that Gorsuch would be at least as conservative a judicial activist as Samuel Alito.
It’s also clear what Neil Gorsuch is not: Merrick Garland. Gorsuch’s nomination is inextricable from its shameful political context. ... The Trump era has already meant trouble for these people—the poor, the sick, dissenters, immigrants—and Gorsuch, for all his intellectual distinction, has shown scant regard for their concerns. There’s little reason to believe that he would as a Justice, either.