Editorials and Opinion
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.
Never Forget Merrick Garland: Why Democrats have to go through with a filibuster of Neil Gorsuch. (Slate.com, 04/04/17)
Jim Newell: When a reporter asked McCain, who was about to step into a Senate elevator, if this was the beginning of the end of the institution as we know it, he said, flatly, “Yes.” ... Not all Republicans are comfortable saying to reporters that yes, they will vote to change the rules to get Gorsuch through. ... This was a stolen seat, and Neil Gorsuch is no friend to those who possess a liberal view of government.
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.
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.
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.
GOP Gorsuch strategy unacceptable (Morning Call [PA], 04/04/17)
Bruse J. Ogilvie, Letter to the Editor: Previously, not only was Merrick Garland qualified for the job and nominated by President Obama, but he also never received a hearing by the Senate. Now, Sen. Toomey and his reckless GOP members are tube feeding Americans an idle threat of "changing the rules" to confirm Gorsuch.
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: No trust for Trump, and by extension, Gorsuch (Coloradoan, 04/04/17)
Jack Shepard: After Supreme Court justice Antonin Scalia passed away on Feb. 13, 2016, Republicans refused to consider President Obama’s choice to succeed him, even though Obama had nearly a year left in his presidency. There was no question of President Obama’s legitimacy, yet Republicans denied him his constitutional duty to pick a successor. They even threatened to boycott any of Hillary Clinton’s nominees, should she have won in November.
Now we have a president whose legitimacy is being questioned by people of all stripes, whose tenure is tenuous at best.... Would a Justice Gorsuch always be known as the man the Russians placed on the court?... The country would be better served by postponing this nomination until confidence is restored in the president
Michael Bennet’s decision to not join Neil Gorsuch filibuster (3 letters) (Denver Post [CO] , 04/04/17)
Gayle Lieban: Until an independent investigation into allegations of President Donald Trump and his campaign’s ties to Russia and Russia’s interference in our election have been concluded, no lifetime nominee should be considered. For Republicans to use the “nuclear option” to confirm Gorsuch, forever changing the rules of the Senate, is shortsighted and irresponsible.
On Gorsuch, Senate Should Debate, Deliberate (Jost on Justice: Law & Justice Blog, 04/04/17)
Kenneth Jost: The Senate should not vote this week on the Supreme Court nomination of Judge Neil Gorsuch. ,,, the reason for slowing down the vote is that Senate Republicans owe it to the American people to allow full debate and deliberation on Gorsuch's nomination before sending him to the Supreme Court for what is likely to be 25 years or longer....They will be getting
* A justice who is a threat to reproductive rights, LGBT rights, and workers' and consumers' rights.
* A justice who is a threat to clean air and clean water regulations.
*A justice who would invite a larger role for money in politics by narrowing the power of Congress or state legislatures to limit campaign contributions.
* A justice who could be a pivotal vote for expanding presidential power at a time when the president is a constitutional time-bomb waiting to go off.
* A justice with no record of promoting racial justice or protecting voting rights at a time when those issues tarnish America's claims to liberty and justice for all.
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.
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.
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.
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.
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.”
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.
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.
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.
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.
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.
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.
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.
Democrats can’t stand down in Supreme Court fight (The Hill, 04/02/17)
Ben Wikler, MoveOn.org, Opinion Contributor: fighting with every available tool is the right strategy, morally and politically, for Democrats ... There are three crucial reasons why Democrats should hold the line at a 60-vote threshold for Neil Gorsuch ... there’s a simple solution if they want to confirm a Supreme Court justice without changing the rules: change the nominee. A Merrick Garland-style moderate would sail through the confirmation process.... If Republicans go nuclear to confirm Gorsuch, that will be the fault of Republicans, not of Democrats.
Letter: No to the ‘nuclear option’ (Salt Lake Tribune [UT], 04/02/17)
Robert C. Woldberg: With the upcoming vote on Supreme Court nominee Neil Gorsuch you have the opportunity to help bring the country together or drive deeper the wedge that divides us. The Supreme Court makes decisions that affect the entire country and because of that, those who sit on the highest court in the U.S. should be someone who represents all citizens, not only those on the far right or business interests. It appears that Gorsuch does not currently have the 60 votes needed to bring debate to an end.... Please do not support the "nuclear option."
[Sen. Jon Tester] Why I Cannot Support Judge Gorsuch (Medium, 04/02/17)
"With Judge Gorsuch on the bench, I am 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.
These are not Montana values.
Lawyers with degrees from Ivy League schools often get good at dodging questions.
But a Judge cannot hide from his opinions.
Over the years, Judge Gorsuch gave corporations the same Constitutional rights as a nurse from Plentywood, a teacher from Kalispell, or a farmer from Fort Benton."
The Government Gorsuch Wants to Undo (New York Times, 04/01/17)
Emily Bazelon & Eric Posner, Op-Ed: Judge Gorsuch embraces a judicial philosophy that would do nothing less than undermine the structure of modern government — including the rules that keep our water clean, regulate the financial markets and protect workers and consumers. In strongly opposing the administrative state, Judge Gorsuch is in the company of incendiary figures like the White House adviser Steve Bannon, who has called for its “deconstruction.”... Schechter Poultry Corp. v. the United States, along with another case decided the same year, are the only instances in which the Supreme Court has ever struck down a federal statute based on this rationale, known as the “nondelegation doctrine.” Schechter Poultry’s stand against executive-branch rule-making proved to be a legal dead end, and for good reason. As the court has recognized over and over, before and since 1935, Congress is a cumbersome body that moves slowly in the best of times, while the economy is an incredibly dynamic system. ... only Justice Clarence Thomas seeks to strip power from the administrative state by undercutting Chevron and even reviving the obsolete and discredited nondelegation doctrine, as he explains in opinions approvingly cited by Judge Gorsuch.