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A project tracking federal judicial nominations and courts.

Editorials and Opinion


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Mitch McConnell, the man who broke America (Washington Post, 04/07/17)
Dana Milbank: That McConnell did a 180 on the topic — going from the institutional defender of the filibuster to the man who destroyed it — is unsurprising. He has frequently shifted his views to suit the needs of the moment.... That McConnell did a 180 on the topic — going from the institutional defender of the filibuster to the man who destroyed it — is unsurprising. He has frequently shifted his views to suit the needs of the moment.... By 2013, for example, 79 of Obama’s nominees had been blocked by filibusters, compared with 68 in the entire previous history of the Republic. After Justice Antonin Scalia’s death was confirmed last year, it took McConnell less than an hour to say that the vacancy should be filled by the next president.

A Toxic Threat to Justice: Democrats must stop the GOP's Supreme Court salvo from also poisoning lower courts. (U.S. News & World Report, 04/07/17)
Nan Aron, Alliance for Justice: Senate Republicans deploying the so-called nuclear option to confirm Supreme Court nominee Neil Gorsuch marks a sad day in history not only for the Senate, but also for justice.,,, Thanks in large part to GOP stonewalling of judicial nominees under Barack Obama, President Donald Trump already has a whopping 120 lower-court vacancies to fill, 19 on circuit courts. His administration has made clear it intends to appoint younger, conservative ideologues with many years to serve, and to jettison the role of the American Bar Association in evaluating candidates for the bench.... With a fired-up base, Senate Democrats have every reason to prioritize circuit court nominations now. They should insist the president avoid nominating judges whose philosophies are extreme.... The "blue-slip" process is a venerable tradition that gives home-state senators power to say whether nominees from their states will advance. Such tactics should not be abused, but they exist.... Obama regularly consulted with Republican senators on finding the best-qualified judicial nominees.

Dark Justice: Gorsuch’s billionaire backers know what they are getting, and the American people should too (Huffington Post, 04/06/17)
Arn Pearson, People For the American Way: Judge Neil Gorsuch played a masterful game of hide-the-ball during his confirmation hearings .... Judge Gorsuch authored seven dissents in 2016 .... Those cases, along with his lengthy 2016 concurrence in Gutierrez v. Lynch—where he laid out his case for rolling back “Chevron” deference to government agency rules—let Gorsuch check off most of the boxes on the Right’s checklist for a Supreme Court nominee. ... Senate Republicans, backed by some very powerful special interests, blockaded Garland and are getting ready ram through Gorsuch, even if it takes a dramatic Senate rules change to do it. They know perfectly well why, and American voters deserve to know too.

Bill Price: Sens. Manchin, Capito should vote no on Gorsuch (Gazette) (Charleston Gazette [WV] , 04/06/17)
Bill Price, Sierra Club: Judge Gorsuch appears to be as hostile to citizen enforcement as Scalia, if not more so. On three separate occasions, he has denied access to the courts for environmental groups to federal courts, relying on cramped views of what it takes to establish access to the federal courts. He has written about his disdain for public interest litigation, a dangerous view of the environmental laws that have safeguarded this country’s air, water and wilderness from devastating harms.

Do Republicans Have Amnesia Over How They Treated Merrick Garland? “We don’t conduct partisan filibusters of Supreme Court nominees,” said one GOP senator. (Huffington Post, 04/06/17)
Jennifer Bendery: There’s a surreal aspect to this week’s Senate confirmation fight over Supreme Court nominee Neil Gorsuch: The more reasons Republicans give for why he deserves a vote, the more they reinforce how badly they treated President Barack Obama’s pick for the court, Merrick Garland.... just swap in “Garland” for “Gorsuch” as GOP senators explain why Trump’s nominee deserves fair treatment.... They never gave him a committee hearing, yet some are mad that Democrats opposed Gorsuch in his. ... it was McConnell who led last year’s unprecedented and partisan effort to deny Garland a hearing or a vote ― a filibuster, in effect ― and argued that the next president should get to fill the court vacancy, even though Obama had a year left in his presidency.

Nuclear Irony: Ending the Supreme Court filibuster struck a blow for majority rule in service to a minority president. (U.S. News & World Report, 04/06/17)
Robert Schlesinger | Managing Editor for Opinion: the GOP's decision to push the Senate further down the road toward becoming a purely party-line institution like the House harms us all by diminishing our great system of governance.... the GOP's abuse of Garland required a response

Editorial: ‘A body blow’ to the Senate (Addison Independent [VT], 04/06/17)
"Senate Democrats will oppose the nomination of Judge Neil Gorsuch to the U.S. Supreme Court for many good reasons. And if Senate Majority Leader Mitch McConnell, R-Ky., is to be believed, he will employ the “nuclear option,” perhaps forever changing the rules of the Senate to approve Gorsuch’s nomination by a simple majority vote. The Republican Party will then have successfully denied President Obama’s nomination of Judge Merrick Garland to the Supreme Court in an affront to Senate rules and tradition, while also changing Senate rules to put Trump’s first nominee onto the Court. To those who say it’s no big deal and is a “good thing” to employ the “nuclear option,” as McConnell maintains, Republican Sen. John McCain had this response: “Idiot, whoever says that is a stupid idiot,..." ... this significant change in the nation’s political discourse and function has been the extremism of today’s Republican Party. It started most recently with Republicans filibustering almost all of President Obama’s appointees to his administration, not because of their qualifications or conflicts of interests or any valid concern, but simply to slow down his agenda. That prompted Senate Democrats to employ the “nuclear option” for Obama’s appointments .... To think that this further blow to the institution will be “good” is to live in a world of falsehoods, afraid to speak the truth of the harm that is being done by their own actions. It will be McConnell’s legacy, much as Sen. Joseph McCarthy is a footnote"

Editorial: Mr. McConnell’s moment (Albany Times Union [NY], 04/06/17)
"So the burden is on Senate Republicans — whether to use power to further erode one of the last protections against the tyranny of the majority, or to resurrect the spirit of compromise. That’s what is at the heart of the “nuclear option” threat as the Senate considers President Donald Trump’s nomination of Judge Neil Gorsuch to the U.S. Supreme Court. Yes, Republicans can stop a Democratic filibuster and confirm a Supreme Court nomination by a simple majority vote. But that would be a mistake. Democrats are right to try to block Judge Gorsuch’s confirmation. He is not the neutral referee of the law that supporters portray him to be; he is a partisan loyalist picked by Mr. Trump from a list compiled by right-wing groups .... Beyond specific rulings, like his absurd opinion supporting the firing of a trucker who left his disabled rig rather than freeze to death, is the concern over Judge Gorsuch’s affinity for originalism .... McConnell has another option: leave the filibuster intact, and take Senate Minority Leader Charles Schumer up on his offer to work to confirm a more mainstream Republican nominee."

Editorial: Civil Rights Act protects LGBT (Kokomo Tribune [IN] , 04/06/17)
"[A]n 8-to-3 decision Tuesday by the full 7th U.S. Circuit Court of Appeals in Chicago may have reframed the text to include protections for a previously unlisted group: LGBT employees.... Posner’s ruling in this case takes a broader interpretation of the law to account for the world we live in now. Like Scalia, Neil Gorsuch — Trump’s nominee for the open SCOTUS seat — is a strict constructionist. This means interpreting law exactly as written and nothing else. We believe Posner and the majority ruled correctly in this case. We hope the nation’s highest court will follow the same logic if this case reaches their chambers."

The Gorsuch filibuster is about far more than payback (Washington Post, 04/06/17)
E.J. Dionne Jr. column: At the root of this fight is a long-term conservative effort to dominate the Supreme Court and turn it to the political objectives of the right. This is thus about far more than retaliation, however understandable, for the Senate Republicans’ refusal to give even a hearing to Judge Merrick Garland, President Barack Obama’s nominee for the seat Gorsuch would fill. Behind the current judicial struggle lies a series of highly politicized Supreme Court rulings.... Bush v. Gore had consequences for the court itself, because Bush got to pick two Supreme Court justices.... Roberts and Alito voted with the 5-to-4 majority in Citizens United that overturned decades of law and precedent to widen the gates to big money in campaigns. Then, in 2013, they were integral to another 5-to-4 decision, Shelby County, that gutted the Voting Rights Act. Many Republican-controlled states rushed in with new laws, including voter ID requirements, that impeded access to the ballot by African Americans and other minorities. You do not have to believe in conspiracies to see how Shelby County and Citizens United fit together. In tandem, they empowered the most privileged parts of our society and undercut the rights of those who had historically faced discrimination and exclusion. They also tilted the electoral playing field toward Republicans and the right.... From now on, conservatives must encounter tough resistance as they try to turn the highest court in the land into a cog in their political machine.

Mitch McConnell can explain that he doesn’t trifle with American institutions (Washington Post, 04/06/17)
Tom Toles, Washington Post Editorial cartoon on Gorsuch Supreme Court nuclear option and more

Tester: Gorsuch would not answer important questions (Missoulian [MT], 04/06/17)
Sen. Jon Tester, Guest column: After meeting with Judge Neil Gorsuch face-to-face, giving him a fair hearing and reviewing his qualifications, I cannot support his confirmation.... I cannot support a nominee who refuses to answer important questions. With Gorsuch on the bench, I’m 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.... not only does Gorsuch think corporations have the same rights as people, in Hobby Lobby he decided that the rights of a corporation outweighed the rights of Montana women.... Gorsuch has argued for a narrow interpretation of the Fourth Amendment which could subject Montanans to government overreach.

McConnell's ‘Nuclear Option’ Gets Trump Gorsuch at a Big Price (Bloomberg News, 04/06/17)
Justin Sink: Mitch McConnell’s precedent-shattering decision to gut the Senate filibuster for Supreme Court nominees is called the nuclear option for good reason: it’s a catastrophe for what little comity and bipartisanship remain in Washington. The move raises the prospect of permanent government gridlock, in an era of coarsened politics and increasingly influential interest groups who demand ideological purity. The ambitions of President Donald Trump, whose legislative agenda was already tenuous, may be further constrained. Even Republicans who voted with McConnell expressed regret. “I guarantee you, just as the Democrats regretted what Harry Reid did, we will regret doing this,” Senator John McCain of Arizona told reporters. ... Susan Collins, the Maine Republican, said her vote came with regret. "It will lower any restraint on any president who wants to choose someone who is much more ideological than Neil Gorsuch is," Collins said, calling the day "sad for the Senate as an institution and I think it’s bad for the court as well."

Filibuster or Bust: The GOP is dooming itself if it eliminates the filibuster. (U.S. News & World Report, 04/06/17)
Prof. David Faris: In fact, it is the GOP, and only the GOP, that has brought us to this low point in partisan relations. By using truly unprecedented stalling tactics to prevent Obama from filling court seats between 2009 and 2013, they forced Senate Democrats either to capitulate to GOP hostage-taking or to nuke the filibuster for District and Appeals Court nominees. Had Republicans fulfilled their legal duty to approve Obama's nominees in a timely fashion, we would not be having this conversation. Then they escalated the conflict by inventing a new rule that presidents can only nominate justices in the first three years of a four-year term, an ad hoc justification for institutional warfare that will surely be jettisoned if there is a vacancy in 2020 and Republicans still hold the Senate. And now, Republicans are poised to eliminate the filibuster for Supreme Court nominees.

It's Hard Not To Hate Mitch McConnell: There's Main Street hypocrisy, there's Washington D.C. hypocrisy, and then there's Mitch McConnell in a category all of his own. (Daily Banter, 04/06/17)
Justin Rosario: On Thursday, McConnell finally took the penultimate step of stealing a Supreme Court seat from a Democratic president by doing away with the filibuster so the Democrats could no longer block the pro-corporate ideologue Neil Gorsuch. This move comes after McConnell refused for over 10 months to even hold hearings for Obama's nominee, the eminently qualified and very centrist Merrick Garland. Republicans also threatened to block any Justice then-presumed winner Hillary Clinton would nominate .... McConnell has been justifying his move to eliminate the judicial filibuster entirely because he previously forced the Democrats to eliminate it for federal judges: ... He is, of course, forgetting to mention that Republicans had made unprecedented, in over two hundred years of American history, use of the filibuster to block Obama's judicial nominees. And they did it under McConnell's direction

Parents should be concerned about Gorsuch's opinions (Cincinnati Enquirer [OH] , 04/06/17)
Michelle Dillingham: Cincinnati families need to know that a judge who has consistently ruled against rights and protections for students with disabilities may be appointed to the Supreme Court, where the final judgment in all cases involving laws of Congress, such as IDEA, are decided.... Cincinnati families deserve a Supreme Court justice who will uphold the civil rights of children with disabilities, not rule against them.

[Editorial] A death knell for bipartisanship (Sacramento Bee [CA] , 04/06/17)
"The U.S. Senate has long prided itself as a deliberative body, less partisan than the House and more devoted to consensus. That tradition is in tatters after Republicans forced through a rules change Thursday so on Friday they can confirm Neil Gorsuch, President Donald Trump’s U.S. Supreme Court nominee. Instead of requiring a supermajority of 60 votes to cut off filibusters and move to an up-or-down vote, it now only takes a simple majority of 51 votes. It’s called the “nuclear option,” and for good reason. It obliterated whatever bipartisanship was left, and the fallout will be felt for years to come. The rules change applies to future Supreme Court nominees, further politicizing the high court.... Republicans are more responsible recently. They routinely blocked Barack Obama’s nominees for federal judgeships when Democrats controlled the Senate, so in 2013, then-Majority Leader Harry Reid of Nevada invoked the nuclear option for judicial nominees and executive appointments. Then when conservative Justice Antonin Scalia died unexpectedly last year, Republicans stole the lifetime appointment from Obama."

Ethics Forum: Age Should Not Be a Factor When Considering Federal Judicial Appointments (Legal Intelligencer, 04/06/17)
Samuel C. Stretton: there's been an informal understanding in Pennsylvania that no one would get appointed to the federal bench if they were older than 62. ... Of interest is President Donald Trump's administration which has at least informally lowered that age to 50.... There are many attorneys in their 50s and early 60s who would be excellent federal judges and who would be precluded if there is this arbitrary and informal understanding that 50 is the cut-off age. There appears to be no good reason to have such a low age cutoff. ... the political consideration of having a like-minded person on the court for 30 years is really not a valid good reason to support a cutoff of 50 years. ... Age 50 limitations clearly are a mistaken attempt to make these appointments political, i.e., I want someone who thinks my way and who will be there for the next 30 or 40 years.... The only considerations should be competency, experience, fairness and knowledge.

[Editorial] Senate should first give Judge Garland a hearing (Anniston Star [AL] , 04/06/17)
"Garland never received a hearing or a vote. It’s like Senate Republicans went on strike for almost a whole year, refusing to do a job required by the U.S. Constitution. The way forward that pays tribute to the Senate’s rules and procedures seems obvious. Before taking up Trump’s nominee, the Senate should give Garland a hearing and a vote before the full Senate. ... Senators of both parties who wish to avoid the nuclear option should press for a vote for Garland before taking up Trump’s nominee."

GOP goes 'nuclear' and permanently damages Senate, Supreme Court (The Hill, 04/06/17)
Maria T. Cardona: Republicans went “nuclear” today by changing the procedures of the Senate in order to confirm Neil Gorsuch by a mere simple majority of senators instead of adhering to a 60-vote threshold needed to invoke cloture. ... Republicans only have themselves to blame and will be the sole owners of this sad legacy.... the wait time for President Obama‘s first-term circuit and district court nominees from nomination to confirmation was more than half a year, a record median wait time as compared to nominees under any other President. If Democrats wanted to fill important vacancies on the nation’s critical appellate courts, changing the rules was going to be their only option. ... Unlike Merrick Garland, Neil Gorsuch is not a moderate, consensus candidate.

[Editorial] A sorry day for democracy and the high court (News & Observer [NC], 04/06/17)
"President Obama nominated a respected, moderate federal judge, Merrick Garland, 63, to fill the Supreme Court seat of Antonin Scalia, who died suddenly in February of last year. The then-president was doing his constitutional duty, and in Garland he chose an experienced judge who was hardly a liberal ideologue and clearly qualified for membership on the high court.... Republican senators in using the “nuclear option” of a majority-only requirement for approval, reject the very logic they used against Garland, that the people through their votes would let it be known what kind of justice they wanted. By that logic, the people wanted Garland, because three million more of them voted against President Trump than for him. This is a sorry day indeed for democracy, and Mitch McConnell, the hard-line Republican leader from Kentucky who signaled his ardent dislike for President Obama from the beginning of his two terms as the elected president of the United States, offers ridiculous logic for his maneuver.... The “norms” would have required a vote on Garland; the “norms” would have left in place the requirement that a nominee have 60 votes to avoid filibuster. McConnell is the one who “moved the goalposts,” and he knows it."

McConnell: ‘Nuclear option’ helps Senate. McCain: ‘Whoever says that is a stupid idiot.’ (Washington Post, 04/06/17)
Paul Kane: “Idiot, whoever says that is a stupid idiot, who has not been here and seen what I’ve been through and how we were able to avoid that on several occasions,” McCain said Wednesday, recalling past efforts to defuse these judicial confirmation wars. “And they are stupid and they’ve deceived their voters because they are so stupid.”... “This is a body blow to the institution, and I think we’re on a slippery slope,” McCain said.... Sen. Bob Corker (R-Tenn.), chairman of the Foreign Relations Committee, agrees with Lott’s prediction. In a little-noticed floor speech, Corker blasted unnamed senators who said the 2013 nuclear option by Democrats to end most filibusters on nominees and the pending Republican step were not bad for the Senate.... He recounted how, after Democrats first triggered the nuclear option to end filibusters on most nominees, the Senate practically stopped working. “There were days — not days, months — where people who had normally worked with people on the other side of the aisle just kind of shut down. It was hard to believe the nuclear option had been invoked,” Corker said. Now, the sides have changed. McConnell has gone from hating the filibuster (2005) to supporting it (2013) to again trying to abolish it (2017) — an evolving set of positions that correlate with which party had the majority.

Commentary: ‘Nuclear option’ for Gorsuch vote defies Collins’ beliefs, threatens Senate: Republicans should not put Trump and their political party ahead of preserving the country's institutions. (Portland Press Herald [ME] , 04/06/17)
Eliza Townsend, Maine Women’s Lobby: Senate leaders are contemplating a maneuver to require only 51 of 100 votes – rather than a bipartisan bar of 60 – to advance the nomination of Judge Neil Gorsuch to a final Senate vote. The fallout for the Senate would be devastating, suggesting just one reason this has been dubbed the “nuclear option.”... If Judge Gorsuch’s extreme views mean that he can’t attract 60 Senate votes, changing the rules is not the answer. I hope Sen. Collins will remember all of these factors – her past convictions, her own policy concerns and the inherent threat to the Senate – and vote against “going nuclear.”

Going Nuclear Will Make Things Worse: Nixing the filibuster will deepen Senate partisanship. (U.S. News & World Report, 04/06/17)
Prof. Lauren Bell: Eliminating the supermajority cloture requirement, as Senate Majority Leader Mitch McConnell has indicated he will do in order to confirm Judge Neil Gorsuch to the U.S. Supreme Court, will further harm the Senate as an institution and reduce its capacity to function as an essential part of our government....Continuing to chip away at the minority party's rights in the Senate will not serve either party, or the country, well in the long run.

Kill the Filibuster, Kill Trust in the Court: Ending the filibuster over partisan bickering endangers the Supreme Court's independence. (U.S. News & World Report, 04/06/17)
Prof. Jamal Greene: the case for retaining the filibuster for Supreme Court nominees is straightforward. We rely on the nine justices of the Supreme Court to make dramatic pronouncements about our public life....If we are to grant a lifetime appointment to a human being to wield this kind of power, the least we should demand is that he or she receive bipartisan support. ... Party-line support is uniquely damaging for high court appointees.... judges cannot do their jobs without the confidence of the public.

Letter to the Editor, April 6 (San Francisco Chronicle [CA], 04/06/17)
Susan Wilder: I am opposed to Neil Gorsuch as a Supreme Court justice. While he appeared bland on TV, in real life his rulings reflect a very conservative, far-right perspective. ... Gorsuch is not a reasonable choice for the Supreme Court, and I am pleased that the Democrats are standing firm against his nomination.

[Editorial] McConnell reaps harvest of division (Lexington Herald-Leader [KY], 04/05/17)
"During his years as minority leader, McConnell wielded Senate rules, such as the 60-vote requirement, like no one ever before. McConnell’s goal: block President Barack Obama’s appointments and legislative agenda. Last year, as majority leader, McConnell refused to give Obama’s Supreme Court nominee Merrick Garland so much as a hearing on the invented grounds that the appointment rightfully belonged to the next president. Interestingly, McConnell refused during a Sunday appearance on “Meet the Press” to support formalizing his invented rule .... he has only his past actions to blame for Democrats’ stubbornness. ... Democrats, logically enough, think that easing Gorsuch’s confirmation would reward McConnell’s intransigence on the Obama nominee.... McConnell was so effective at blocking Obama’s nominees that President Donald Trump inherited almost twice as many judicial vacancies (an estimated 103) as Obama did (53). Eroding the 60-vote requirement, also known as the filibuster, does alter the nature of the Senate in ways that McConnell once decried. The Senate would become less consenus-oriented and deliberative .... The objections to Gorsuch are rooted in substance not politics alone. The Coloradan came off less qualified in person than on paper. His record reflects an intemperate zeal to dismantle protections for workers, consumers, clean water and air.... McConnell, who perfected the obstructionist model, is reaping what he sowed."

Letter: Mitch McConnell’s blame game (Salt Lake Tribune [UT], 04/05/17)
Kendall Robins: Senate Majority Leader Mitch McConnell is threatening to exercise the nuclear option if the Democrats filibuster the nomination of Judge Neil Gorsuch, and then says it will be on the Democrats if he does so. That's just like a kidnapper threatening to kill the kid if the parents don't pay up, and then saying that the resulting murder would be the fault of the parents. And, it's ironic that McConnell is still seething over the Democrats going nuclear on federal judge nominations, which was in response to McConnell clearly declaring 100 percent obstruction to anything and everything Barack Obama wanted to do, even if it was a good idea. And, it was McConnell who denied Obama, our duly elected president, any consideration at all for his nomination of Merrick Garland.

Neil Gorsuch, just another faux originalist judge (The Hill, 04/05/17)
Ivan Eland: if Gorsuch’s previous actions are indicative, he — like Scalia — might unfortunately practice selective originalism.

Chuck Grassley Gives a History Un-Lesson on Judges (People For blog, 04/05/17)
Paul Gordon: During the eight years President Clinton served in office, more than 60 of his circuit and district court nominees became victims of the Republicans’ “pocket filibuster.” ... George W. Bush took office, at which point Republicans spent eight years demanding that all judicial nominees receive floor votes. But the minute it was a Democratic president again, the GOP went back into obstruction mode. ... Republicans exercised every procedural trick in the book to slow down the confirmation process for all judicial nominees, regardless of level (circuit or district), regardless of support from home state Republicans, and even regardless of a complete lack of opposition at all.... Republicans escalated their war even further when Grassley himself announced that he and his party would refuse to allow President Obama to fill any of the three vacancies on the 11-member D.C. Circuit. ... As Rep. Adam Schiff of California said: “When McConnell deprived President Obama of a vote on Garland, it was a nuclear option. The rest is fallout.”... Less than three months into the Trump administration, with only one nominee, Republicans are threatening to change the rules for Supreme Court nominees.