Editorials and Opinion
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."
Democrats are going to filibuster Gorsuch. It’s the right thing to do. (Washington Post, 03/23/17)
Paul Waldman: Everyone knows who Neil Gorsuch is and what kind of justice he’ll be. Democrats have tried to get him to admit it, knowing that he never will, while he pretends to have an open mind on everything and a judicial philosophy unsullied by any particular normative beliefs about policy. It’s an act, and it’s one that Republican nominees in particular have honed over the years: Claim you can’t say anything about past cases or present cases or future cases, and even if you could, you really have no opinions about anything. Or maybe you have a stray opinion here or there, but those opinions lay upon your conscience with all the weight of a few downy feathers, easily brushed aside when it comes time to apply the law and the Constitution.
It’s utterly dishonest, and everyone knows it. Gorsuch was presented to Trump as a possible nominee by the Heritage Foundation; he was on its list not because he’s keen of mind and pure of heart, but because he’s a staunch conservative .... these are truly extraordinary circumstances. The Republicans’ refusal to allow Merrick Garland to get even a hearing to fill this seat was nothing short of a crime against democracy, a twisting of democratic norms beyond all recognition.
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.
Judge Gorsuch Makes It "Personal" (Dorf on Law, 03/23/17)
Prof. Michael Dorf: Judge Gorsuch could have ducked--and did duck--specific questions about the correctness of prior cases by using the might-come-before-me maneuver. But he also repeatedly relied on his newly fashioned just-my-personal-opinion dodge. That shouldn't have worked because it's so clearly incoherent. Even if one is naive enough to think that a judge's policy views have nothing to do with his legal views of contested issues, it goes beyond naiveté into self-contradictory nonsense to think that a judge's view of the law has nothing to do with his view of the law.
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.
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."
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
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.
Letters to the editor: Vote no on nominee (News Journal (DE), 03/22/17)
Kelly Mahaffey: My heartbreaks thinking Judge Neil Gorsuch could fill the vacant seat on the nation’s highest court. As the mother of two special needs children, I need Senators Carper and Coons to restore my faith and not confirm Gorsuch for the U.S. Supreme Court. In cases involving children with special needs, he’s consistently ruled against those with disabilities – those who need the most protection.
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.
Judge Gorsuch and the Role of Public Interest Litigation in our Democracy (American Constitution Society Blog, 03/22/17)
Prof. Alan K. Chen: the notion that democracy is superior to litigation as a means of social reform overlooks something critical. Litigation itself is a deeply embedded way of participating in our constitutional democracy for the politically powerless.
Neil Gorsuch Is Bad News for the Disabled (Progressive Magazine, 03/22/17)
Mike Ervin: If Neil Gorsuch, President Trump’s nominee to serve on the U.S. Supreme Court, is confirmed by the Senate, it will be a huge setback for Americans with disabilities.
Throughout his judicial career, Gorsuch has exhibited a deep disregard for the rights and well-being of Americans with disabilities. The Bazelon Center for Mental Health Law analyzed Gorsuch’s voting record and concluded that he has a “consistently narrow view” of the Americans with Disabilities Act (ADA), the Individuals with Disabilities Education Act (IDEA) and other disability rights laws.
The Problems With Originalism (New York Times, 03/22/17)
Prof. Ken Levy: Originalism is just one of the theories that Judge Gorsuch shares with the late Justice Antonin Scalia; another is its closely related cousin, textualism.... Nowhere does the Constitution explicitly state that textualism, no less originalism or any other method, is the correct theory of constitutional interpretation. Justice Scalia also failed to realize — or at least admit — that textualism and originalism rarely determine a unique outcome for constitutional questions.... they are nothing more than thinly veiled disguises for modern political conservatism.
While Gorusch was testifying, the Supreme Court unanimously said he was wrong. Awkward. (Think Progress, 03/22/17)
Ian Millhiser: All eight justices rejected Gorsuch’s approach. IDEA, Chief Justice Roberts wrote, “is markedly more demanding than the ‘merely more than de minimis’ test applied by the Tenth Circuit.” Indeed, Roberts added, Gorsuch’s approach would effectively strip many disabled students of their right to an education.
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?
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.
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.