Editorials and Opinion
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: A question hangs over Neil Gorsuch: Is he fair? (Chicago Tribune, 04/04/17)
Joe English: There is no question Gorsuch is conservative. But thoughtful?
Of the seven judges who ruled in the case of Alphonse Maddin, only one — Gorsuch — ruled against him. ... Is it fair to expect a truck driver to freeze to death? Is it thoughtful?
Gorsuch does not have the judgment to sit on our nation's highest court.
Planned Parenthood exec: Gorsuch is a poor choice: Be Fearless (Colorado Springs Independent, 04/04/17)
Sarah Taylor-Nanista: Our opposition is on behalf of our clients – as a health care provider to tens of thousands, we believe that Judge Gorsuch has taken active stands that give corporations religious rights over individual’s access to birth control (Hobby Lobby v. Sebelius and Little Sisters of the Poor Home for the Aged v. Burwell). He has refused to answer crucial constitutional questions or elaborate on his judicial philosophy during his hearing in the Senate.
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.
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.
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.
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.
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.
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.
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.
Mitch McConnell Admits the ‘Rule’ That Blocked Merrick Garland Is Not Actually a Rule (New York Magazine, 04/03/17)
Jonathan Chait: After Antonin Scalia died, in February of 2016, Mitch McConnell justified his decision to blockade the vacancy on the grounds that neither party would approve a Supreme Court justice during an election year. ... Sunday, Chuck Todd asked a question that exposed McConnell’s ruse quite elegantly. Why not ratify the principle?... So, no rule. McConnell blockaded the Supreme Court vacancy because he had the votes to do it.... Jonathan Chait: After Antonin Scalia died, in February of 2016, Mitch McConnell justified his decision to blockade the vacancy on the grounds that neither party would approve a Supreme Court justice during an election year. ... Sunday, Chuck Todd asked a question that exposed McConnell’s ruse quite elegantly. Why not ratify the principle?... So, no rule. McConnell blockaded the Supreme Court vacancy because he had the votes to do it.
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.
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.
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.
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.
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.
[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."
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."
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.
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.
If GOP goes nuclear over Gorsuch, America is toast (The Hill, 03/31/17)
Donna Smith, Opinion Contributor: "It does not appear that the nomination and confirmation process for Neil Gorsuch will be handled in anything but an intensely partisan and damaging way.... Neil Gorsuch is the mouthpiece for an intensely alt-right agenda, and not the even remotely nonpartisan jurist some would prefer.... Without a sound process carried out in the Senate and with the campaign advertising being done on his behalf, Gorsuch’s nomination and potential confirmation further weakens the Senate, the Supreme Court and the nation. The nuclear option diminishes the process, the nominee and more.
If the Republicans use the nuclear option to change the Senate rules and confirm Gorsuch, the damage to this nation that became so evident following the November election will intensify.... It remains to be seen whether or not the Senate will have enough institutional memory and integrity to protect itself as a vital part of the sound functioning of our democracy, or if it will further descend into the tweeting abyss of insanity.
President* Trump's League of Masterminds Keep Screwing Up the Game Plan (Esquire, 03/31/17)
Charles P. Pierce: Gorsuch is doing himself no favors .... . Apparently, he declined to meet privately with either Senator Tammy Duckworth of Illinois or Catherine Cortez-Masto of Nevada, both of whom are Democrats, women, and people of color. This is not a good look.
Sen. McCaskill: Gorsuch: Good for Corporations, Bad for Working People (Medium, 03/31/17)
"This is a really difficult decision for me. I am not comfortable with either choice. While I have come to the conclusion that I can’t support Neil Gorsuch for the Supreme Court — and will vote no on the procedural vote and his confirmation — I remain very worried about our polarized politics and what the future will bring, since I’m certain we will have a Senate rule change that will usher in more extreme judges in the future.
I cannot support Judge Gorsuch because a study of his opinions reveal a rigid ideology that always puts the little guy under the boot of corporations. He is evasive, but his body of work isn’t. Whether it is a freezing truck driver or an autistic child, he has shown a stunning lack of humanity. And he has been an activist — for example, writing a dissent on a case that had been settled, in what appears to be an attempt to audition for his current nomination.
Then there is Citizen’s United, the single most corrupting force in the history of politics in this nation. I cannot and will not support a nominee that allows dark and dirty anonymous money to continue to flood unchecked into our elections.
I reject this nomination because Judge Gorsuch would continue an activist position that states that corporations have the same rights as people."
Sen. Richard Blumenthal: I'll Vote Against Gorsuch (Hartford Courant [CT], 03/31/17)
"I will vote against the nomination of Judge Neil Gorsuch as United States Supreme Court justice.... Trump's disrespect for the judiciary was demonstrated by how he selected his nominee....Against this backdrop, Judge Gorsuch has a special obligation to be forthcoming — not to prejudge the merits of a particular future case, but to share his core beliefs on longstanding, well-established legal precedents and demonstrate his commitment to an independent judiciary.
Instead he has evaded real answers at every turn.... We know that the man who hired him has said he passes his right-wing litmus test. We know that conservative organizations have spent millions on the prospect that he will move American law dramatically to the right. And we know that he will not answer questions that his predecessors answered about core tenets of American jurisprudence. In short, he has left us with substantial doubt.... That doubt is why I cannot support this nomination, and why I will work to block it using every tool at my disposal."