Editorials and Opinion
[Editorial] 9 questions for Neil Gorsuch: Our view (USA Today, 03/19/17)
"There’s nothing to stop a judge from talking about his previous cases, his legal thinking or past Supreme Court rulings. In that spirit, here are some questions that the senators ought to ask and that Gorsuch ought to answer: ... This just scratches the surface of questions senators should ask Gorsuch, who, at 49, could influence the nation’s laws for more than three decades. Like all nominees, the judge deserves a fair hearing to determine whether he falls within the broad judicial mainstream and has a healthy respect for precedent. That standard will be impossible to assess if the witness ducks or parries every question he is asked."
The Gorsuch Nomination And The Rule Of Law: Anyone who cares about the rule of law should oppose this nomination. (Huffington Post, 03/19/17)
Prof. Geoffrey R. Stone, Op-Ed: Chief Judge Garland should have been confirmed easily. Indeed, every Supreme Court nominee in living memory with anything approaching Chief Judge Garland’s impeccable credentials and record of moderation has been easily confirmed by the Senate, ... Senate Republicans, under the “leadership” of Senate Majority Leader Mitch McConnell (R-Ky), refused to confirm, or even to consider, Judge Garland’s nomination. This unconscionable maneuver was nothing less than a dishonorable and dishonest effort to steal this seat on the Supreme Court for the right wing.... This crass and unprincipled manipulation of our democracy should not be allowed to succeed.
What Neil Gorsuch Can Learn From His Grandfather (Brennan Center for Justice at NYU School of Law, 03/19/17)
Andrew Cohen: John Gorsuch brought a level of empathy and compassion to the law. His contemporaries seem clear about that. There is no reason today to believe his grandson will follow that lead. He is not his grandfather’s man, at least not now, at least not yet. Instead, on the eve of his confirmation hearing, we appear to have before us yet another lawyer and judge with impeccable credentials and an impressive pedigree who plans to use his considerable intellectual gift to continue to favor the favored and afflict the afflicted.
What the Senate Should Ask Judge Gorsuch (Politico, 03/19/17)
Jeff Greenfield: "If a punishment like flogging or branding was a regular feature of 18th century criminal justice, would that mean a court could not forbid it under the Eighth Amendment today?”
Or, “Interracial marriage was outlawed by 16 states for a century after the 14th amendment and its equal protection clause was adopted. When the issue came before the Supreme Court in 1967, the ban was unanimously struck down. Did the court have to find that legitimizing interracial marriage was the ‘original intent’ of the drafters in order to reach its decision?”
Either question would make clear where originalism finds its most difficult challenge, and might help provide a clue to how Gorsuch works through such a challenge.
Viewpoints: Why splitting the 9th Circuit is a bad idea: Professor: Proponents say the court is too big, slow and wrong to properly serve Arizona. That's not true. (Arizona Republic, 03/19/17)
Prof. Gary L. Stuart: The debate over whether to divide the 9th Circuit is a political masquerade in search of a principle. The principle should be just and fair decisions rendered as timely as possible. It’s time to remove the masks and reveal the facts.... Gov. Ducey and Sen. Flake use two primary arguments to show the 9th Circuit should be split. The first is that the U.S. Supreme Court overturns 77 percent of the 9th Circuit decisions. Respectfully, that’s not the case. In 2015 the Ninth Circuit issued 6,551 decisions. Eleven of those cases were reviewed by the U.S. Supreme Court. Eight were reversed. That means more than 99.9 percent of its rulings were left in place. In fact, between 2010 and 2015 the 9th Circuit’s reversal rates comes in third behind the 6th Circuit and the 11th Circuit.
The second argument is that the Ninth Circuit is simply too big and too slow. Judge Alex Kozinski disagrees. The 1985 appointee of President Ronald Reagan, who served as the Ninth Circuit’s Chief Judge from 2007 to 2014, said; “There are economies of scale by having a large circuit, and the court could decide cases faster if it had more judges.”
The current Ninth Circuit Chief Judge, S.R. Thomas said; “delay would increase substantially if the court were split—both the old ninth and the new 12th.”... Justice Anthony Kennedy, warned against ideological court tweaks in 2007.
Senate Democrats should grill Judge Gorsuch on antitrust. Here's how. (The Hill, 03/19/17)
David Goodfriend: this is about everyday Americans not getting ripped off.... Judge Gorsuch is an expert on antitrust law and policy but counts himself among the conservative jurists who, beginning in the 1970s, have sought to narrow the scope of antitrust analysis to economics-driven price inquiries and has ruled in favor of defendants far more often than plaintiffs in antitrust cases.
The important money in politics questions to ask Judge Gorsuch (The Hill, 03/18/17)
Op-Ed by Trevor Potter, Campaign Legal Center: Senators must push for Judge Gorsuch’s view of whether the constitution allows us to check the corrosive influence of money in our political system.... It is worrisome that Judge Gorsuch has expressed interest in providing a higher level of constitutional protection to a donor’s right to make political contributions than the court currently affords the right to vote.
In Gorsuch, Conservative Activist Sees Test Case for Reshaping the Judiciary (New York Times, 03/18/17)
Eric Lipton and Jereney W. Peters: “Make no mistake,” Mr. Leo said in a speech last month at the Ronald Reagan Dinner at the Conservative Political Action Conference. “How we deal with this vacancy now, the strength that we as the pro-Constitution movement demonstrate in this fight, will determine the extent to which we are able to both nominate and confirm pro-Constitution judges as we move forward.”
Mr. Trump already has 124 judgeships to fill — a backlog created by Senate Republicans who blocked the confirmation of many of President Barack Obama’s nominees. That includes 19 vacancies on the federal appeals courts.
Because of the age of many judges today, the White House expects between 70 to 90 appeals court positions to open up over the next four years. That would give Mr. Trump the opportunity to fill anywhere from one-third to half of all appellate seats
Neil Gorsuch's Alarming Relationship With A Serial Voting Rights Misinformer (Media Matters for America, 03/18/17)
Julie Alderman: Newly released emails from President Donald Trump’s Supreme Court nominee, Judge Neil Gorsuch, evidence an amicable relationship between the judge and National Review contributor and discredited conservative media legal analyst Hans von Spakovsky. The relationship is a sign that Gorsuch could continue Trump’s assault on civil rights from the high court.
GOP Has Already Given Americans Grounds to Reject Gorsuch: “He’s Like Scalia” (People For blog, 03/18/17)
Paul Gordon: Given the late justice’s three decades on the Supreme Court, “like Justice Scalia” is not just some nebulous term. His record gives a very definite meaning to the term and to the policy goals desired by the far Right.... we know that Justice Scalia’s approach to the law has harmed everyday Americans in a variety of ways, while ensuring that more power go to the most powerful corporations and individuals.
And Judge Gorsuch’s strongest supporters assure us that he’ll treat us the same way Scalia did. In fact, in some important ways, Gorsuch is further to the right than Scalia himself.
The conclusion isn’t hard to reach: Gorsuch should not be confirmed.
Trump may not last a year, his Supreme Court shouldn't last generations (The Hill, 03/18/17)
Lisa Graves and Arn Pearson, Center for Media and Democracy: What should the Senate do when the most unpopular president in recent history makes one of the most unpopular Supreme Court nominations in recent history?
“The Senate is not a rubber stamp, and the Constitution does not require the Senate to give a nominee a vote,” McConnell insisted last year. ... Let’s call that the “McConnell Rule” on judicial nominations and, out of courtesy, stick to it as long as McConnell controls the Senate.
The Senate should table Judge Gorsuch’s nomination to the Supreme Court until both political parties are prepared to search for a consensus candidate the American people can wholeheartedly support
Questions of life and death for Neil Gorsuch (Boston Globe, 03/18/17)
Op-Ed by Michael S. Lewis: By singling out private persons, Judge Gorsuch implies a preference for the life-taking activities of government officials.... citizens should take note of fresh news stories about Gorsuch’s brief role as an attorney in the Bush Administration during a period of time where government lawyers played a substantial role in providing the legal justifications for enhanced interrogation techniques that would seem to conflict with Gorsuch’s moral position that “all human beings are intrinsically valuable.”
Gorsuch’s rejection of life-taking acts of private persons is doubly interesting because it stands to conflict with the approval of life-taking by private persons embedded in the Supreme Court’s interpretation of the Second Amendment.... I hope the Senate will ask these questions as Neil Gorsuch’s nomination is considered.
Gorsuch Confirmation Process Too Important to Rush (Truthout, 03/18/17)
Arn Pearson: Recent revelations have thrown the White House and Department of Justice into turmoil and created a crisis of legitimacy for the Trump Administration that will spill over to the nation's highest court if there is a rush to judgment on Gorsuch's confirmation.
In addition, the Senate and the public lack key information about Judge Gorsuch needed to give his nomination thorough consideration.... they're attempting to rush the confirmation process of Neil Gorsuch to avoid public scrutiny of his extreme views and record.
Editorial Ask Supreme Court nominee Neil Gorsuch the hard questions. It matters (Los Angeles Times, 03/18/17)
"Senators should engage the nominee in a serious discussion of his views about the Constitution, the role of precedent and how the court should adapt general principles to changing social and scientific circumstances. And Gorsuch should respond in kind by speaking as frankly as he can, demurring only about specific cases that are likely to come before him.... Democrats are justifiably angry that the Republican majority never allowed hearings or a vote on Merrick Garland, President Obama’s eminently qualified nominee to replace Scalia.... Scalia’s version of originalism led to him dissent stridently from rulings recognizing rights .... Those decisions were a natural outgrowth of earlier rulings in which the court secured other rights that the Constitution didn’t explicitly guarantee, such as a right to marry someone of another race (or the right to marry at all)"
Court nominee Neil Gorsuch cherry-picks from Constitution (Waco Tribune-Herald [TX] , 03/18/17)
Op-Ed by David H. Gans, Constitutional Accountability Center: his record suggests that he is a judge who gives pride of place to the 1789 Constitution while ignoring the amendments added to the Constitution that limited the states, protected substantive fundamental rights and equality and gave Congress broad powers to help realize these constitutional promises.... He has written many opinions interpreting the Fourteenth Amendment but he has never written any opinions that discuss the text and history of the Fourteenth Amendment. ... This is a gaping hole for an originalist judge.
Respect for text and history has to be for the whole Constitution, not just for parts of it. In fact, his cases in this area, more often than not, give a narrow interpretation to the individual rights protected by Fourteenth Amendment and an outsized view of the respect due to the states.
Second, even where Gorsuch looks at text and history, he sometimes reaches results that ignore first principles. His attack on Chevron — one of his most widely noted opinions — is a case in point. In seeking to eliminate one of the most cited cases in American law, Gorsuch tries to constitutionalize something that’s just not in the Constitution.
Amicus: Why It’s Worth Opposing Gorsuch (Slate.com, 03/18/17)
Dahlia Lithwick: After a successful blockade of President Obama’s Supreme Court nominee, the GOP-led Senate will convene hearings next week on President Trump’s pick for the court’s year-old vacancy. Considering all that has happened in the past year, how should Democrats handle the proceedings? On this week’s episode, we put that question to Sen. Sheldon Whitehouse (D-R.I.), a member of the Senate Judiciary Committee.
Neil Gorsuch’s Alarming Views on Antitrust and Monopoly: The Supreme Court nominee doesn’t seem to care about how concentrated economic power stifles fair competition and hurts average Americans. (Washington Monthly, 03/17/17)
Op-Ed by Sandeep Vaheesan: Not only did Gorsuch rule against Novell, but he went on to impose a near-impossible burden on antitrust plaintiffs.... At a time when the public has serious and growing concerns about the power of platform monopolists such as Amazon, Facebook, and Google, Gorsuch’s decision in Novell gives these titans broad power to squelch rivals and to extend their existing monopolies into adjacent markets. In his opinions, Gorsuch goes further than most of his judicial peers in his deference to monopoly and disregard for Congress’s original goals.... he has displayed no awareness of how concentrated economic power concentrates political power. He ignores the effects of monopoly on competitors and open markets. ... At a moment of historic economic and political inequality in America, it would be a grave mistake to ignore Gorsuch’s pro-monopoly views.a
Americans deserve independent pick for Supreme Court (Wisconsin Rapids Daily Tribune, 03/17/17)
Op-Ed by Jenni Dye, Stephanie Bloomingdale, Christine Neumann-Ortiz, Nicole Safar, Astar Herndon and Dana Schultz: The reward for stealing a seat on the Supreme Court ought not be the lifetime appointment of a right-wing judge who could shape the direction of the court for decades. ... the record reveals Judge Gorsuch is far from that, finding him to be far to the right on nearly every issue.
Neil Gorsuch was instrumental in defending George W. Bush’s torture program: What does that mean for the role of the judiciary in reviewing the president’s actions? (Think Progress, 03/17/17)
Op-Ed by Kate Martin, Center for American Progress: Supreme Court nominee Neil Gorsuch was “at the center of both litigation and negotiations with Congress” over the George W. Bush administration’s positions on “detainee abuses, military commissions, warrantless surveillance and its broad claims of executive power” during his tenure as a senior member of the Justice Department. Should Gorsuch be confirmed to the Court, he is likely to have to rule on the extent of such presidential powers.... While the documents about Mr. Gorsuch’s tenure at DOJ working on this case are still incomplete, they contain no indication that he disagreed with or questioned any of these radical legal positions taken by the administration.... the question isn’t whether Gorsuch will stick to his principles. The question is: what are those principles?
How the Democrats Should Fight Gorsuch’s Nomination (Washington Monthly, 03/17/17)
Op-Ed by Martin Longman: the members of the Senate Judiciary Committee should question the nominee closely about his views on antitrust law.... lifetime appointments deserve special scrutiny, and that they shouldn’t be made on the narrowest of partisan majorities.... When a president seeks to fill seats on district and appeals courts, he knows that he’ll need the support of the home state senators ... . the blue slip system is still in place and it provides moral guidance as well as an important precedent.
The second main principle that must be applied here is that the Republicans must not be allowed to effectively steal a Supreme Court seat without any consequences.... And if the Democrats put up some kind of faux-fight only to cave on the theft of this seat, they’ll not only buy themselves three or four decades more of Scalia-like jurisprudence on the Supreme Court, they’ll infuriate their base and show that they are so weak that they can be rolled, defeated and humiliated without the slightest downside for the Republicans.
Letter on Gorusch: Oppose Gorsuch (Wichita Eagle [KS] , 03/17/17)
Jane Byrnes: Supreme Court nominee Neil Gorsuch believes that the wealthiest should speak louder than the rest of us. We deserve a Supreme Court justice who shares our cherished democratic value of equality.
Urge our Kansas senators, Pat Roberts and Jerry Moran, to stand firm on the side of political equality and fairness by opposing Judge Gorsuch’s nomination.
Gorsuch’s Bush Administration Service Reveals Dangerous Views on Presidential Authority (Huffington Post, 03/17/17)
Op-Ed by Elliot Mincberg: A key question about the nomination of Neil Gorsuch to the Supreme Court is his views on presidential authority—will he defer to President Trump on controversial issues like Trump’s immigration ban and the use of torture? Recently released documents concerning his time as a key Justice Department political appointee in 2005-06 confirm earlier indications that the answer, unfortunately, is likely yes. Although the administration’s document production is woefully inadequate, what has been provided makes clear that Gorsuch was at the center of Bush administration unprecedented efforts to assert dangerously broad presidential power and to limit review by the courts.
Gorsuch’s Corporate Bias (Medium, 03/17/17)
Op-Ed by Prof. Erwin Chemerinsky: As a judge on the United States Court of Appeals for the Tenth Circuit, Neil Gorsuch’s opinions consistently have favored the interests of corporations over those of employees and consumers. Even when he is interpreting statutes that were meant to provide expansive protections for workers and customers, Judge Gorsuch construes the laws in favor of business. His rulings leave no doubt that if confirmed he will be a very conservative justice who will be strongly biased in favor of corporate interests.
In E-mails, Neil Gorsuch Praised a Leading Republican Activist Behind Voter Suppression Efforts: Gorsuch’s ties to Hans von Spakovksy suggest a hostility to voting rights. (Nation, 03/17/17)
Ari Berman: Few people in the Republican Party have done more to limit voting rights than Hans von Spakovsky. He’s been instrumental in spreading the myth of widespread voter fraud and backing new restrictions to make it harder to vote. But it appears that von Spakovsky had an admirer in Neil Gorsuch, Donald Trump’s nominee for the Supreme Court, according to e-mails released to the Senate Judiciary Committee covering Gorsuch’s time working in the George W. Bush Administration.... Given that von Spakovsky hailed Gorsuch as “the perfect pick for Trump,” it’s safe to assume he believes that the Supreme Court nominee shares his views. The Senate needs to aggressively question Gorsuch to see if that’s the case.
Is Gorsuch an originalist? Not so fast. (Washington Post, 03/17/17)
Op-Ed by David M. Dorsen: Because a judge on a lower federal court is constrained by Supreme Court precedent, his judicial opinions are not a good measure of his judicial philosophy. It is when he is free to speak his mind, such as in a book or an article, that his jurisprudence reveals itself. Gorsuch proclaims himself an originalist.... Gorsuch’s originalism ignores the enormous problem of ascertaining what the law and practice were around 1790. .... Gorsuch does not even mention the problem of choosing between the views of the two most influential originalists in history. Scalia’s version of originalism led him to write 135 liberal opinions. Thomas disagreed with Scalia on half his liberal opinions .... We need Gorsuch to explain his originalism and what that would mean for the Constitution as we know it.
The “True Loyalty,” Political Connections, and Conservative Ties that Have Fueled Gorsuch’s Rise (American Constitution Society Blog, 03/17/17)
Christopher Kang, Guest Post: As Gorsuch began his effort to “be a full-time member of the team,” the way he started and then advanced his public service career raises troubling concerns regarding his nomination to the Supreme Court. ... Gorsuch developed talking points to defend the use of torture, or “enhanced interrogation.”...What did it take to convince the Heritage Foundation and Federalist Society?... When it comes to evaluating Judge Gorsuch’s adherence to the rule of law, I am at a complete loss for why his choice of which church to attend would need to be scrutinized at all—and I have experience evaluating and recommending hundreds of candidates to President Obama for potential judicial nomination.
But even more concerning, once they embarked on this line of questioning, what did it take to “conclude it was not a strike against him?”
Neil Gorsuch was instrumental in defending George W. Bush’s torture program (Center for American Progress, 03/17/17)
Kate Martin: As reported by the New York Times’ Charlie Savage, Supreme Court nominee Neil Gorsuch was “at the center of both litigation and negotiations with Congress” over the George W. Bush administration’s positions on “detainee abuses, military commissions, warrantless surveillance and its broad claims of executive power” during his tenure as a senior member of the Justice Department. .. the question isn’t whether Gorsuch will stick to his principles. The question is: what are those principles?
Beware logic of ‘strict constructionism’ — it defended slavery (Chicago Sun Times, 03/16/17)
Op-Ed by Phil Kadner: President Trump touts his Supreme Court nominee, Neil Gorsuch, as a strict constructionist, a highly valued quality in the eyes of conservative Republicans. Yet, it’s sort of like saying this fellow who will stick to his principles no matter how awful the outcome. A classic example of taking it too far was the case of Dred Scott, a U.S. Supreme Court decision so awful it paved the way for Civil War.