Editorials and Opinion
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.
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.
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.
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.
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.
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.
[Editorial] Neil Gorsuch deserves Supreme Court confirmation — but not if it requires the nuclear option (Dallas Morning News, 03/23/17)
"Republican leaders have called such opposition as unreasonable. We certainly think it's ill-advised. But we strongly disagree with Senate Majority Leader Mitch McConnell that it would justify his invoking the "nuclear option," upending Senate rules to lower that debate-ending threshold to a simple majority. We thought it was a bad idea, and so did McConnell, when his Democratic predecessor used the same approach to make Cabinet nominees and lower-court judgeships immune from the filibuster, after years of Republican obstructionism.
To double down on that bad precedent and extend it to one of the most important decisions the Senate makes ought to be anathema to McConnell. Embracing the nuclear option would stain the reputations of McConnell and other senators who support the move. And it would diminish the institution they lead. Fortunately, Republicans have other, saner options. ... McConnell made things harder for Republicans with his astounding behavior last spring in rejecting sight unseen President Barack Obama's Supreme Court nominee. Democrats have every right to still be seething. Trump didn't make it easy either. Gorsuch is plenty qualified, but his extreme conservatism is hardly something to smooth Democrats' ruffled feathers, not when Obama named such a moderate when he was in Trump's shoes.
But that doesn't mean the Republicans can't win, if they try.
And if they lose? Then their only responsible course would be to inform the president he's going to have to make another choice.
The Senate's long tradition of giving the minority party some leverage to fend off the majority is critical to maintain, no matter who is in power."
Letter: Durbin: Gorsuch showed his true values with his ruling on the 'frozen trucker' case (Chicago Tribune, 03/23/17)
Sen. Dick Durbin: Maddin’s position was ruled on by seven different administrative and court judges. All but one judge ruled against the trucking company. That one judge was Gorsuch.... he 10th Circuit majority noted that Judge Gorsuch cherry-picked one dictionary’s definition to favor the company. Other dictionaries, and the law’s purpose of protecting health and safety, favored Maddin.... we can only look at his record in deciding whether he should be given a lifetime appointment to the highest court of the land.... Every judge brings values to the court and in close, hard cases those values can tip the balance on the meaning of the law or the facts before the court.
Al Maddin was more than just an unlucky truck driver. He was a hardworking American entitled to justice in our courts.
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 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?
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."
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.
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?
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.
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.
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.
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 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
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.
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.
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.
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.
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.