Editorials and Opinion
Judge Gorsuch Needs a History Lesson on Access to Justice (American Constitution Society Blog, 03/23/17)
Prof. Imre S. Szalai, Guest Post: Judge Gorsuch’s statements demonstrate a lack of understanding of the history of arbitration law in America. When enacting the Federal Arbitration Act during the 1920s, Congress never expressed a preference in favor of arbitration. I challenge Judge Gorsuch to explain the basis for his perception of such a Congressional preference.... Judge Gorsuch claims to be a dedicated textualist, a strong supporter of the Seventh Amendment’s right to a jury trial, and a champion for access to justice. If Judge Gorsuch really is who he claims to be, then he should scale back the expansive, flawed interpretations of the Supreme Court in favor of arbitration.
What Neil Gorsuch (Really) Means for the Supreme Court (Esquire, 03/23/17)
Andrew Cohen: He also is every bit the conservative ideologue that his most suspicious critics think he is. ... Gorsuch is going to rule overwhelmingly in favor of conservative causes and principles, just like the man who preceded him, Antonin Scalia. To paraphrase John Roberts: Justice Gorsuch will call balls and strikes all right, just like an umpire, only one team will get almost all of the strikes and the other almost all of the balls. ... he has been chosen for the High Court by the Trump administration specifically because of his politics, as expressed through his work for the Bush administration, his time in private practice, and the jurisprudence he has revealed during his time as a federal appeals court judge. The think tanks and dark money donors who supported his nomination didn't just buy in on him on spec. ... Bad news for environmentalists.... The ideological gulf between Garland and Gorsuch is going to make a difference in the lives of every American today and every person yet to be born here in the next half century or more.
EDITORIAL: Voters deserve more facts at confirmation hearings (Beaumont Enterprise [TX], 03/23/17)
"Supreme Court nominee Neil Gorsuch gave senators specks of insight into his judicial philosophy this week, but he generally followed a script that has become familiar: Reveal as little as possible, be vague instead of specific, and be quick to note that the question being asked could come up in a future court case.
Senators, and by extension the people who voted them into office, deserve better. They deserve straight answers to straight questions. Nominees like Gorsuch could provide them without compromising their integrity.
The whole purpose of the hearings is to find out what the nominee thinks about key issues."
Constitution approach matters (Dallas Morning News, 03/23/17)
Letter to the Editor by Sanford G. Thatcher: Originalism is an incoherent approach to interpreting the Constitution.... Why? Because the Constitution was the product of compromise and deliberately incorporated ambiguity as a means of winning the votes needed to adopt it .... So, when it comes time for Congress to make a decision about approving Neil Gorsuch for a seat on the Supreme Court, this question of the coherence of the doctrine to which he adheres should be front and center.
Apply that reasoning to Gorsuch (Dallas Morning News, 03/23/17)
Nancy Lea Paine, Letter to the Editor: Senate Republicans justified their refusal to give a confirmation hearing to Supreme Court nominee Judge Merrick Garland by arguing that Barack Obama had less than a year left in his presidency. In light of the FBI testimony presented at the House Intelligence Committee hearing, perhaps Democrats can make a similar argument against the confirmation of President Donald Trump's nominee, Judge Neil Gorsuch.
Testimony on the Nomination of Judge Neil Gorsuch to the Supreme Court (American Constitution Society Blog, 03/23/17)
Prof. William P. Marshall: In fact, in the leading case on the subject, Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), Justice Scalia found the right against regulatory takings to be located not in text or history but in so-called “constitutional culture.” Id. at 1028.... n the Eleventh Amendment cases restricting citizens’ ability to sue states, originalists relied on history and not text. At the same time, in Fourteenth Amendment cases striking downstate affirmative action programs, they relied on text and not history. And in Shelby County v. Holder, 133 S. Ct. 2612 (2013), originalists had no reliable basis in either text or history when they struck down one of the most important pieces of legislation ever passed by the United States Congress -- § 5 of the Voting Rights. ... Originalism, then, is a doctrine of false promises. It suggests a fealty to the Framers’ design when it is actually antithetical to the Framers’ vision. It purports to offer a jurisprudence with fixed and predictable results when its application is nebulous and variable. It claims value neutrality when it has been erratically deployed in order to achieve specific results.
IU Law professor: Gorsuch unsuitable for Supreme Court (Indianapolis Star [IN], 03/23/17)
Opinion by Prof. Florence Wagman Roisman: Judge Neil Gorsuch’s opinions for the Tenth Circuit Court of Appeals show that he should not be confirmed for a seat on the U.S. Supreme Court. These decisions evidence a person who serves his own views rather than legal mandates and is far out of touch with, and coldly unsympathetic to, the concerns of ordinary Americans. They portray a jurist who is so persuaded he is right, even when his colleagues disagree, that he heeds his own rigid ideology, avoiding the respectful consideration of different points of view that should characterize an appellate court. Judge Gorsuch pushes the law to reach results that serve his political and social views, and his manipulations contradict what Congress has directed and prejudice people whom Congress has tried to protect.
His several decisions involving the plight of children with disabilities – and the families of those children – provide striking examples of Judge Gorsuch’s unsuitability for the Supreme Court.
Gorsuch’s big fat lie [print headline "Gorsuch's convenient untruth"] (Washington Post, 03/23/17)
E.J. Dionne Jr., Opinion writer: “There’s no such thing as a Republican judge or a Democratic judge,” Gorsuch said.
Gorsuch, the amiable veteran of many Republican campaigns, is well-placed to know how serious a fib that was. ... The best scholarship shows an increasingly tight fit between the party of the appointing president and how a judge rules. It’s a point made in “The Behavior of Federal Judges ,” by Lee Epstein, William Landes and Judge Richard Posner, and also in research by Neal Devins and Lawrence Baum.... The reason Republicans wouldn’t even let the moderately liberal Garland make his case is that conservatives who regularly denounce “liberal judicial activism” now count on control of the Supreme Court to get results they could never achieve through the democratically elected branches of government.... Gorsuch has done what economic conservatives count on the judges they push onto the courts to do .... conservatives, including Trump, want the court to sweep aside decades of jurisprudence that gave Congress broad authority to legislate civil rights and social reform, along with environmental, worker and consumer protections. Gorsuch good-naturedly evaded nearly every substantive question he was asked because he could not acknowledge that this is why he was there.
Yes, Democrats should filibuster Gorsuch. His record shows why. (Washington Post, 03/23/17)
James Downie,The Washington Post’s Digital Opinions Editor: Republicans’ unprecedented refusal to even give Garland a confirmation hearing would be reason enough for Democrats to filibuster President Trump’s nominee, Neil Gorsuch. But even if circumstances were normal, Democrats should be eager to filibuster Gorsuch anyway. Judge Gorsuch’s record suggests Justice Gorsuch would favor powerful interests over regular people — perpetuating a system that voters oppose.
A survey of Gorsuch’s record shows that when he has broken with his colleagues, it is usually to favor businesses over workers. ... Gorsuch’s writings show a broad preference for corporations over consumers and regulators. ... Gorsuch’s record cuts against Americans’ civil rights as well. ... Gorsuch was deliberately chosen for his legal and political views.
The Gorsuch Confirmation – Day Four (American Constitution Society Blog, 03/23/17)
Mark S. Kende: a Democratic filibuster is completely justified by the outrageous refusal of the Republicans even to give President Obama’s nominee, the very distinguished Chief Judge Merrick Garland, a hearing.... Democrats have set an example of how not to be hyper-partisan and immoral. And yet Republicans still have had the chutzpa to say that a filibuster would be obstructionist.
Sen. Kamala Harris: Why I cannot support Judge Gorsuch (San Francisco Chronicle [CA], 03/23/17)
"President Trump’s nominee, Judge Neil Gorsuch, certainly has a paper resume that would impress legal scholars. But his rulings repeatedly have failed to achieve justice for all Americans.... The rest of Judge Gorsuch’s record also shows he’s willing to favor corporations over the American people. He believes companies can impose their religious views on employees and deny women birth-control coverage. And he has been hostile toward federal agencies that protect American workers and consumers.... Judge Gorsuch has consistently valued narrow legalisms over real lives. I must do what’s right. I cannot support his nomination."
Do we really want an ‘originalist’ Supreme Court justice? (Sacramento Bee [CA] , 03/23/17)
Prof. Allan Ides: Supreme Court reports are replete with this or that justice’s semi-fictional version of history.
Another concern that might give many Americans pause is the backward-looking nature of original understanding, under which neither the present effects nor the future consequences play any role in a judge’s interpretation of the law.
An alternative to originalism would be a more inclusive approach that takes into account both the original understanding and the lessons we have learned over the course of the past 200 years, one that carefully considers the past, the present and the future.... I assume that Gorsuch strongly believes in the mission of originalism, but that strong belief, which is really a form of religion, makes him a most unfortunate candidate for a position on the Supreme Court.
Where does Judge Gorsuch stand on limiting the federal government? (The Hill, 03/22/17)
Prof. David Reiss: His opinion in Caring Hearts Personal Home Services v. Burwell describes a federal government that has ceased to function rationally .... Our ninth justice should be one who can craft solutions to our 21st century legal problems that are based on the values embodied in the Constitution, not the facts of life of a bygone era.
The Gorsuch Confirmation – Day Three (American Constitution Society Blog, 03/22/17)
Prof. Carolyn Shapiro: Gorsuch repeatedly insisted that (paraphrasing) “there are no Republican or Democratic judges; there are only judges,” that judges’ personal views are irrelevant, etc., etc., This is silly. As Sen. Franken (D-MN) said, if that is so, why is Merrick Garland not on the Supreme Court?
Letters to the editor: Questions to ask Gorsuch (News Journal (DE), 03/22/17)
Guy VanderLek: I would call on Senator Christopher Coons ask the following questions of the nominee:
Do you believe that the Constitution in any way prohibits the President from appointing a SCOTUS justice during his final year in office? Is there any justification for the Senate refusing to hold confirmation hearings for such an appointment? Do you think of the way your Republicans in Congress stonewalled the nomination of Judge Merrick B. Garland exactly one year ago was just and reasonable?
Gorsuch Evades Questions on Children with Disabilities (People For blog, 03/22/17)
Paul Gordon: This morning, a unanimous Supreme Court rejected Judge Neil Gorsuch’s formula that lowers the bar on what schools must do to educate children with disabilities.... The answers to difficult legal questions don’t just magically appear.
And neither did any responsive statement by Gorsuch to Senator Durbin’s question.
Nor did he respond to Sen. Klobuchar’s follow-up. She pointed out the fallacy of his earlier claim to Sen. Durbin that his decision was based on binding 10th Circuit precedent. She also cited Gorsuch yesterday defending his decision to occasionally write controversial and disturbing concurrences that needlessly address major constitutional issues and urge the reversal of Supreme Court precedent.
The Supreme Court Just Gutted a Gorsuch Opinion — and Made Him Look Extreme (New York Magazine, 03/22/17)
Ed Kilgore column: Gorsuch’s opinion in Luke P., by contrast, added the word “merely” to this framework. Under Luke P., the benefits offered to a disabled student “must merely be ‘more than de minimis.’” That one word effectively transformed the floor that the court placed below disabled students in 1996 into a ceiling. Gorsuch transformed a rule instructing school districts that they must do more than nothing into a rule instructing them that they don’t need to do any more than a little more than nothing.... That Neil Gorsuch, for whatever reason, chose to interpret the law as guaranteeing these kids skimpier services than Samuel Alito and Clarence Thomas felt appropriate casts a shadow
Democrats should make Gorsuch wait. And wait. | Opinion (Sun Sentinel [FL], 03/22/17)
Gary Stein, editorial writer and columnist: What the GOP did to Garland was trashy and rude and despicable — they didn't even give him a hearing ... Democrats should try to stall this as long as they can. Maybe for several months. At least until the FBI finishes its investigation of Trump and his buddies in Russia.
If Trump comes out clean, then they can go ahead and take a vote on Gorsuch.... What if he faces possible impeachment? What if he doesn't finish his term?
Should he be allowed to pick the Supreme Court justice?
I don't think so.
Unanimous Supreme Court Rejects Gorsuch Standard in Disability Rights Case (People For blog, 03/22/17)
Paul Gordon: Judge Gorsuch wrote a panel ruling stating that all the school had to do to fulfill its legal responsibilities is to show “merely more than de minimis” progress.
Today, the Supreme Court didn’t just reject this interpretation of a key law protecting children with disabilities—it did so unanimously. In a similar case raising the same issue, Endrew v. Douglas County School District, the justices ruled 8-0 that the law requires more than just the low bar that Gorsuch set for Luke’s school. ... The Court was clear in stating what should have been obvious: "When all is said and done, a student offered an educational program providing “merely more than de minimis” progress from year to year can hardly be said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low would be tantamount to sitting idly . . . awaiting the time when they were old enough to drop out. The IDEA [Individuals with Disabilities Education Act] demands more."
Neil Gorsuch Can Get Away with a Lot. Not This. The Constitution: It's kind of important. (Esquire, 03/22/17)
Charles P. Pierce: Gorsuch has been appointed to a seat on the Supreme Court because another man was illegitimately denied even a meeting with Republican legislators. He's been appointed to a seat on the Supreme Court by a president* whose corruption is exceeded only by his ignorance, and whose election was the result of a number of factors, many of them reeking of unresolved shenanigans. Putting him in the center of that dubious process may be the best that the Democrats can do.
If Gorsuch gets through, big business wins (South Jersey Times [NJ], 03/22/17)
Letter to the Editor, Joseph D. Bastrimovich: If anyone thinks Gorsuch, or any judge, doesn't come to the court with an agenda, they are naive or stupid. Business-funded front groups like Judicial Crises Network wouldn't be spending oodles of money toward Gorsuch's confirmation if they didn't expect something from him.
Gorsuch hearings: A referendum on Originalism and corporate power (The Hill, 03/22/17)
Danielle McLaughlin: Gorsuch is an Originalist, like Scalia was ... The Founders would likely shudder at the power of corporations in today's America....regular Americans might be the biggest losers if corporations’ rights continue to be expanded by the Roberts court.
Go Ahead, Neil Gorsuch, Tell Us What You Think (Bloomberg News, 03/22/17)
Prof. Noah Feldman: It’s also ridiculous to think that litigants in future Chevron cases would somehow be prejudiced by what Gorsuch has written before or by what he might have said.... As for issues that might come before the court, there’s also no reason for a judge’s views to prejudice outcomes or litigation.
Gorsuch is being cagey about his views on Trump and ethics. That could pose huge problems. (Washington Post, 03/22/17)
Sarah Posner: President Trump’s Supreme Court nominee, Neil Gorsuch, declined to answer questions about the Constitution’s emoluments clause, which prohibits a public officeholder from accepting payments from a foreign government or foreign government-owned entity without congressional approval.
The questions, from Sen. Patrick Leahy (D-Vt.), highlighted how extraordinarily fraught Gorsuch’s nomination is, as his hearings unfold amid the unprecedented presidential conflicts of interest precipitated by Trump’s refusal to divest from his vast business empire. And these unparalleled circumstances make Gorsuch’s answers — or, more accurately, his evasions — a matter of grave consequence for public confidence in the court’s ability to hold Trump accountable, should it hear any political corruption cases against Trump.
If You Are LGBTQ in WV, You Should be Concerned about Neil Gorsuch (Charleston Gazette [WV] , 03/22/17)
Op-Ed by Andrew Schneider: When it comes to fairness and equality, Gorsuch’s record is troubling. As a lawyer, scholar, and judge, he has positioned himself as an obstacle to justice and fairness for those seeking relief in court — including LGBTQ people seeking nothing more than the chance to live their lives in peace. It’s because of this reason that I urge Senators Manchin and Capito to vote against Judge Gorsuch’s nomination to the Court.
March 22 Letters: Why Democrats should delay Gorsuch vote (San Jose Mercury News [CA], 03/22/17)
Erin Chalmers: they should agree to hold a vote on his nomination only at such time as all investigations into Russian election meddling are over and if President Trump is cleared. We should not have a potentially illegitimate president making lifetime Supreme Court appointments to the Supreme Court. Democrats should not and cannot filibuster for 2-4 years, but should absolutely do so until these investigations are complete.
Gorsuch’s Legacy, and the Planet’s (New York Times, 03/22/17)
David Leonhardt, Op-Ed columnist: I expect that the climate will end up being a large part of Gorsuch’s legacy if he joins the Supreme Court.
He could be the deciding vote on pollution cases that will come before the court in the near future. Longer term, when the country next has a president who takes climate change seriously, many efforts to fight it are likely to end up before the court.
Gorsuch is extremely conservative, and the best working assumption is that he will be hostile to environmental regulation. But that’s not the only possibility.