Editorials and Opinion
Judge Gorsuch believes in the sanctity life. How will that apply to gun suicides? (Bangor Daily News [ME], 03/16/17)
Op-Ed by Peter Sly: The means used for suicide matters. Unlike other methods of killing yourself, a gun is easy to use, quick and usually effective.... Research shows that a handgun in your home increases the risk that a family member will commit suicide. ... Gorsuch criticizes the rationale for assisting suicide that rests on “the theory of moral autonomy and its message of individualism.” Those arguments are akin to those heard in Second Amendment dialogues.... serious harm falls on the suicide victim’s family, so Judge Gorsuch rejects the “assisting autonomy” justification, invoking Thomas Jefferson’s focus on family harm. ... In his book, Judge Gorsuch argues that assisting or facilitating a suicide should be considered illegal, except when end-of-life medical directives are clear. The assistant is an “accessory before the fact” for the death and resulting family trauma. Thus, accessory liability should attach to a gun owner who loans a pistol to her suicidal friend. This argument also is applied to unsecured household guns. Should the law require disclosure of the suicide risk to a family with an unsecured household gun?... It could be argued that government actions, including the 2008 Heller and 2010 McDonald Supreme Court decisions, facilitate the gun suicide epidemic by fostering guns in the home.
Billions in Campaign Spending at Stake in Hearing on Trump’s Supreme Court Pick (American Constitution Society Blog, 03/16/17)
Guest Post by Adam Lioz, Demos: The ninth justice will help determine whether wealthy donors continue to drive our major policy decisions, or whether we can instead finally build a democracy where the size of our wallets no longer determines the strength of our voices.
Meat, booze and the bench (Iowa City Press-Citizen, 03/16/17)
Sam Osborne, Letter to the Editor: Gorsuch held in his judgment in the case of Burwell v. Hobby Lobby Stores that on the grounds of an employer's religious freedom, such an employer was entitled to withhold compensatory payment for an employee’s coverage of birth-control contraception because the employer thought it sinful. How stands Gorsuch on an equally devoted vegetarian employer having a right to withhold any portion of compensation to an employee that would go to the purchase of meat, or a teetotaler withholding from the purchase of alcoholic spirits?
One who finds such comparisons ridiculous had best understand how ridiculous one person’s religious convictions can appear to another and why matters involving the exercise of one’s own conscience had best be kept to the burden of oneself and out of the law of the land
Senators Must Ask Gorsuch If He Will Force Americans into Arbitration (Center for American Progress, 03/16/17)
Joe Valenti and Rebecca Buckwalter-Poza: the Senate must ask Judge Gorsuch about his views on arbitration to determine whether he will put big business ahead of Americans’ constitutional right to a trial by jury. ... Gorsuch has consistently upheld arbitration even in flawed contracts. ... Gorsuch’s prior ruling on the NLRA, his aversion to deferring to agencies, and his affirmation of the FAA and arbitration suggest his confirmation would mean that the Court will continue permitting forced arbitration to spread.
As Trump boasts about his Muslim ban, the courts use his own words against him (Washington Post, 03/16/17)
Op-Ed by Sarah Posner: On Monday, the Senate Judiciary Committee begins confirmation hearings on Trump’s nomination of Neil Gorsuch to fill the late Supreme Court Justice Antonin’s Scalia’s seat. If senators do not question Gorsuch about the independence of the judiciary in light of Trump’s efforts to undermine it, they will be making a mockery of the process and the institution.
Next Week's Supreme Court Confirmation Hearings Will Be a Test for Democrats: Will members of the Senate Judiciary Committee stand up to Neil Gorsuch, or let Trump radicalize the Court for decades to come? (Rolling Stone, 03/16/17)
David S. Cohen: this isn't how anyone thought things would play out exactly one year ago, when President Obama nominated Merrick Garland to fill the Supreme Court seat left vacant by the late Antonin Scalia. However, through an audacious and historically unprecedented act of grand theft judiciary, the Republicans stole the seat out from under the Democrats and now have the chance to put a radical, young conservative on the Court for the next several decades.... Democrats could signal they're willing to stand up to Gorsuch and Trump if they drill deep into particular aspects of his philosophy, such as whether he really believes the Constitution should be interpreted based on how it was originally understood. After all, a real originalist would have to take unpopular positions, such as that the Constitution does not protect women from discrimination and that states can ban interracial marriage. A principled originalist would also have to take positions that are opposite current conservative orthodoxy, such as that affirmative action is allowed and that corporations have no speech rights. The Democrats also could signal opposition by grilling Gorsuch about Trump attacking the judiciary, and whether he thinks the Senate's inaction on Garland's nomination was consistent with constitutional norms.
Letter to the Editor on Gorsuch Supreme Court nomination (Los Angeles Times, 03/16/17)
Ron Ellsworth: There is only one question the members of the Senate Judiciary Committee need to ask federal appeals court Judge Neil Gorsuch to determine how he will approach his job on the Supreme Court: Does he agree with an interpretation of the Constitution by which the advice and consent clause of Article II, Section 2, was ignored for nearly a year in order to prevent a sitting president from having his own nominee heard for a seat on the Supreme Court?
If he answers forthrightly that this was a regrettable and unprecedented disregard for the plain language of the Constitution, we will know that we have a person of honesty and integrity for the court. If he defends the tactic or avoids answering the question, we will know we have a right-wing shill for the seat.
[Editorial] Our view: Fill Erie’s federal judgeship now (Erie Times-News [PA], 03/16/17)
By the Editorial Board: Pennsylvania's senators, Republican Pat Toomey and Democrat Bob Casey, have pledged to continue their bipartisan approach to federal judicial nominations under President Donald Trump and laid out the process for candidates to apply.
News of continued cooperation amid so much toxic division is welcome.
But what the senators' announcement omitted was the time, energy and hope already squandered to fill some judicial posts in the state, especially the U.S. District Court seat in Erie, which, to the disservice of northwestern Pennsylvania litigants, has been vacant for three and one-half years.... Baxter, a Democrat, and Marilyn Horan, a Butler County Republican nominated for a district court seat in Pittsburgh, breezed through placid hearings before the bipartisan Senate Judiciary Committee, which in January 2016 unanimously advanced them for Senate confirmation.
There the nominations stalled, as Republican Senate Majority Leader Mitch McConnell, playing an unworthy, cynical game of naked politics, obstructed the process because, in his view, Obama already had nominated enough judges.... We urge them to quickly endorse Baxter again, and cross our fingers that the White House will eschew disruption and renominate her for the post in the name of good governance. If Baxter, and Horan, were quickly seated, that would help relieve the entire district, which is operating at a 40 percent judicial reduction.
Gorsuch endorsement disappointing (Missoulian [MT], 03/16/17)
Molly Bradford, Letter to the Editor: As the co-founder of Missoula-based technology company Gatherboard, I was disappointed to see the Montana Chamber of Commerce’s endorsement of President Trump’s Supreme Court nominee. Judge Neil Gorsuch’s record does not represent the best interests of my business. I encourage U.S. Sens. Steve Daines and Jon Tester to take a hard look at Gorsuch’s record.
Like many business owners, I’m wary of being forced to sign binding arbitration agreements imposed by giant companies in order to conduct business. ... the trend, which Gorsuch apparently supports, is toward forcing individuals to go to arbitration rather than before a court to resolve disputes with massive corporations.... it appears that he’s only for giant corporations, not regular business people and entrepreneurs. Montanans do not believe corporations are people, and we expect our senators to support justices that don’t either.
Questions for Judge Gorsuch (Just Security, 03/16/17)
Prof. Jennifer Daskal: Judge Gorsuch has acknowledged playing a significant role in at least five key cases during his two years at the Justice Department that involved efforts to defend and shield from review detainee abuse, warrantless wiretapping, and the expansive use of the FBI’s national security authorities. In addition, Judge Gorsuch was actively involved in policy discussions regarding the contours of the Detainee Treatment Act of 2005, which among other things stripped Guantanamo detainees of the ability to bring habeas challenges their detentions. (These habeas-stripping provisions were eventually declared unconstitutional by the Supreme Court.) The specifics of Judge Gorsuch’s advice and role in these matters, as well as his views now, should be probed further.
Restoring Judicial Independence (American Constitution Society Blog, 03/15/17)
Caroline Fredrickson: Trump's selection process for a Supreme Court nominee was unprecedented. There are real concerns raised by the litmus tests that the president promised that his judicial nominee has met. Gorsuch’s record on the bench demonstrates a departure from decades of precedent. At the same time, there is information about the judge's time at the Department of Justice that is still unknown despite repeated requests for information. Add to this nomination process the fact that Gorsuch was selected by a president with numerous constitutional challenges that are already being disputed in court.... We need to ensure that senator’s questions are answered, and next week’s confirmation hearing is an important part in restoring transparency.
Letter: Gorsuch nomination stolen from Garland (Columbus Dispatch [OH], 03/15/17)
John L Tripp, Letter to the Editor: Don't you think it's ironic that the Republicans will get their Supreme Court justice who interprets the Constitution literally only because Senate Majority Leader Mitch McConnell ignored the Constitution in refusing to perform his Constitutional duty and hold hearings and a vote re: Judge Merrick Garland's nomination by President Barack Obama? ... given that his nomination was stolen from Garland, his will not be a legitimate seat on the court.
The conundrum of consumer, employment arbitration clauses (Buffalo Law Journal [NY], 03/15/17)
Richard Griffin & Aaron Rubin: Many Americans are increasingly being forced to agree to one-sided contracts that prevent them from going to court altogether — e.g., various consumer and employee agreements which mandate that any disputes related to employment or the consumer relationship must be decided by a private arbitrator and prevent the convening of a class action.... President Trump’s nominee to the Supreme Court, Neil Gorsuch, has written only sparingly about the Federal Arbitration Act. Whether or not he proves as strident an advocate for arbitration as Justice Antonin Scalia, the court’s arbitration-friendly majority will likely be restored should the Senate confirm him.
Coalition Delivers 1 Million+ Petitions to #StopGorsuch (People For blog, 03/15/17)
Rio Tazewell: This morning Senators Elizabeth Warren and Ed Markey joined activists and representatives from multiple organizations to deliver more than one million petition signatures opposing Judge Neil Gorsuch, Donald Trump’s nominee for the Supreme Court. ... Senate Minority Leader Chuck Schumer and Senator Richard Blumenthal held a press conference this morning with individuals harmed by Judge Gorsuch’s decisions, demonstrating the negative real-life implications for working Americans. Also, this week a letter signed by more than 120 organizations was delivered to the Senate Judiciary Committee, and tomorrow a coalition of groups is holding a call-in day encouraging members to call their senators and voice their opposition to Judge Neil Gorsuch.
Powerful Stories from Those Harmed by Neil Gorsuch (People For blog, 03/15/17)
Paul Gordon: The decade-long judicial career of Neil Gorsuch is littered with the lives damaged by his approach to the law that favors corporations and the powerful over everyday Americans. Three of those people spoke out this morning at a press conference on Capitol Hill to tell their first-hand stories of how Gorsuch’s ideological approach to the law has harmed them.
This Is How Neil Gorsuch Thinks (New York Magazine, 03/14/17)
Roger Parloff: There’s a dark side – elitist, cruel – to his originalism. ... there are other adjectives for Gorsuch’s dissent. Obtuse, callous, elitist, and cruel are contenders. He displays a manner of thinking that might disappoint — if not shock — many of the white, working-class voters who turned out for Trump in November. ... Gorsuch ridiculed his colleagues’ reasoning, and especially their appeal to the statute’s stated purpose of advancing health and safety.
Judge Gorsuch failed our family (San Francisco Chronicle [CA], 03/14/17)
Frank, David and Katherine Hwang and Jean Hwang Carrant: When Judge Neil Gorsuch ruled against our family member battling cancer, Grace Hwang, almost three years ago, his decision was heartless.... Given how Gorsuch ruled as a federal circuit judge, he should not be confirmed to the U.S. Supreme Court.... In writing his decision, Gorsuch said the purpose of federal law is “not to turn employers into safety net providers for those who cannot work.” He said that Grace’s six months of leave were “more than sufficient,” and that attendance was a basic expectation of employees. But Grace wasn’t asking for a vacation. She was asking for what the law provides: a reasonable accommodation so she could work from home instead of going to campus and potentially dying.
A plea to reject Gorsuch for the U.S. Supreme Court (Wisconsin Gazette, 03/14/17)
Signed by Jenni Dye, Research Director One Wisconsin Institute; Stephanie Bloomingdale, Secretary-Treasurer, Wisconsin State AFL-CIO; Christine Neumann-Ortiz, Executive Director Voces de la Frontera; Nicole Safar, Government Relations Director of Planned Parenthood Advocates of Wisconsin; Astar Herndon, Executive Director 9 to 5 Wisconsin; Dana Schultz, Executive Director Wisconsin Voices
Commentary: Trump’s rubber stamp on Supreme Court would threaten voting rights (Orlando Sentinel [FL] , 03/14/17)
Guest Columnist, Ben Monterroso, Mi Familia Vota: Gorsuch currently sits on the U.S. 10th Circuit Court of Appeals, which includes Colorado, New Mexico and other states, and has generally landed his judicial gavel on the opposite side of rights for workers, women, students or those who do not have the big money to influence elections. In other words, people who look to the courts to provide relief for wrongs committed by people and corporations in more powerful positions.... Gorsuch once wrote that “the left” uses the courts too much to protect rights instead of going through the political process, without acknowledging intimidation tactics that deny equal access to the ballot.
So far, the federal courts have rejected the 2011 Texas voter ID law. But how would Gorsuch vote if the case reaches the Supreme Court?
The nation should not face that prospect, and that is why we urge the Senate to reject Gorsuch.
Should the Senate confirm Neil Gorsuch to the Supreme Court? (Denver Post [CO] , 03/14/17)
Eve Rose, Letter to the Editor: Last year, Senate Republicans refused to hold a hearing for President Barack Obama’s nominee, Judge Merrick Garland.... If Gorsuch, who says he honors the original intent of the Constitution, is a man of his beliefs, the honorable thing to do would be to reject the nomination, the product of unconstitutional and certainly undemocratic actions.
The public's right to know Is under attack (Bennington Banner [VT], 03/14/17)
By Sen. Patrick Leahy: Vermonters and all Americans will be able to tune in to the Senate Judiciary Committee's public consideration of a Supreme Court nominee. While this same process should have been afforded to Chief Judge Merrick Garland, President Obama's highly qualified nominee to fill the Supreme Court vacancy, Republicans broke a century of Senate tradition and refused him the opportunity of a public hearing. Now we are faced with a new nominee for the highest court in the land, nominated by a president who has already shown hostility to independent judges who dare to uphold the Constitution, and to journalists so bold as to write the truth. Next week's hearings mark a time where transparency and a free press can illuminate for the American people exactly what is at stake with this Supreme Court nominee and this presidency.
A Principled Reason to Oppose the Confirmation of Neil Gorsuch (American Constitution Society Blog, 03/14/17)
Prof. Peter M. Shane, Guest Post: This is especially so if you have principled objections to judicial methodologies that purport to constrain judges, but which, in the hands of conservatives, lead quite predictably, even if not quite inevitably to politically conservative outcomes.... a senator may also conscientiously determine that Judge Gorsuch’s personal qualifications do not overcome the damage that would come from rewarding unprecedented Republican obstructionism in 2016. That is a principled basis for saying enough is enough."
Commentary: Gorsuch rulings will be tainted (Philadelphia Inquirer [PA], 03/14/17)
Prof. Scott E. Sundby: Republicans would not have run out the clock on Garland's nomination if they didn't believe that differing judicial philosophies matter.
The problem, therefore, is not Gorsuch's adeptness at calling balls and strikes; it is that he should not be behind the plate at all. This brings us to what should be the most difficult question for Gorsuch at his confirmation hearing: How can one claim fidelity to the Constitution when one owes his position to others playing political games with the document and refusing to honor the Framers' intentions?
Ten Questions for Judge Gorsuch (Dorf on Law, 03/13/17)
Prof. Eric Segall: if he wants a seat on our nation’s highest Court, the American people have a right to know where he stands. So with that in mind, here are ten questions (with possible follow ups) that he should be asked: ...
When Gorsuch Promises “Equal Right to the Poor” (PrawfsBlawg, 03/13/17)
Prof. Richard M. Re: during his confirmation hearings, the Senate should ask Gorsuch what he understands his oath to mean—particularly the part about doing “equal right to the poor and to the rich.”
In a forthcoming article, I discuss the history of the judicial oath's “equal right” principle, including its role in recent confirmation hearings.... here are three questions that the Senate might ask Judge Gorsuch:
Can you tell us about a time when one of your judicial decisions was influenced by your oath to “do equal right to the poor and to the rich”? When federal judges have discretion to impose criminal fines, does the oath require consideration of whether the defendant is poor or rich? Do federal judges have an obligation to think about whether both the poor and the rich can access federal courts to obtain “equal right”?
Opinion: Gorsuch May Be Supreme Court’s Most Religiously Motivated Justice (NBC News, 03/13/17)
Yuvraj Joshi, Lambda Legal: Burwell v. Hobby Lobby Stores, Inc. — illustrates just how extreme Gorsuch's views are.... an opinion written by Judge Gorsuch before the case was appealed to the Supreme Court was even more extreme, supporting even more sweeping religious exemptions from laws.... Judge Gorsuch's opinion makes no attempt to balance different interests.... Judge Gorsuch offers no words of caution against religiously motivated discrimination. ... Judge Gorsuch's Hobby Lobby opinion casts serious doubt on his ability to recognize non-religious interests, to weight them appropriately, and to appreciate the stakes of his judgments for the most vulnerable members of society
Op-Ed Make Neil Gorsuch actually answer questions in his Supreme Court confirmation hearings (Los Angeles Times, 03/13/17)
Prof. Eric J. Segall: Although no nominee to our highest court should pledge to decide any issue in a specific way, a nominee ought to be pressed to fully explain her views on cases that have already been decided and other current legal issues. ... After all, many nominees, including Gorsuch, have expressed their views on legal questions in articles and books long before stepping into the Senate Judiciary chamber room....the Senate rejected Bork because his views on privacy, speech and gender discrimination were not shared by the vast majority of Americans. It is unlikely Gorsuch’s views are similarly out-of-touch, but we will never know unless the senators act like grown-ups and demand that he reveal them.
Gorsuch education, experience too narrow (Missoulian [MT], 03/13/17)
Jeff Renz, Letter to the Editor: I disagree with my friend Russell Fagg, who considers Neil Gorsuch a “home run.” Gorsuch continues the unfortunate line of Supreme Court nominees whose education and experience are so narrow that they ought not to sit as judges.
Gorsuch's Adherence to Originalism Should Keep Him From SCOTUS; OPINION: Originalism fails to adapt to changing times and makes promises it cannot keep. (National Law Journal, 03/13/17)
Prof. David Rudenstine: I would vote against any nominee to the Supreme Court who stated that he or she adhered to originalism in construing the U.S. Constitution. Given that Gorsuch's judicial writings are widely understood as presenting him as an originalist, that would be my main objection.... The theory requires that we determine whose understanding of the original Constitution is definitive. But originalists disagree on this critical point.... judges practice "law office history," which is not history at all. ... Originalism assumes that historical evidence yields definitive and comprehensive answers to contemporary constitutional questions. The fallacies here are evident. ... Originalism also implodes over rights not mentioned in the Constitution — so-called un-enumerated rights — but which are nonetheless considered fundamental.