Editorials and Opinion
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.
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.
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.
[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.
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."
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."
Enough already with a “deal” on Gorsuch (Huffington Post, 03/31/17)
Christopher Kang, Contributor: Here are five reasons that a deal doesn’t make sense for Democrats.
First, Judge Gorsuch’s record.... Second, this is not “Justice Scalia’s seat,” and every nominee must be evaluated regardless of whom they would replace.... Third, no one knows when the next Supreme Court vacancy will occur. ... Fourth, any deal to preserve the 60-vote threshold may be short-lived.... Fifth, there is no guarantee that not filibustering today would lead to a more consensus nominee next time.
Letter: Trump policies, nominations fail Americans (Austin American-Statesman [TX] , 03/30/17)
Bill Haschke: in the Senate confirmation hearings for Neil Gorsuch — who Trump has nominated to replace late Justice Antonin Scalia on the U.S. Supreme Court — Sen. Sheldon Whitehouse brilliantly exposed the Republican policies and practices of denying justice for people in favor of allowing corporations to run roughshod over people. He showed that the Republican-dominated Supreme Court, over the past 10 years, has decided 16 major cases – all in favor of corporate financial interest over the interest of human beings.... Gorsuch is the perfect Federalist Society judge.... Republicans talk of rebalancing the court after the death of Scalia. What they really mean is they want to regain the advantageous imbalance in favor of corporations over people in this country.
Force court nominees to answer questions about their views (Orange County Register [CA] , 03/30/17)
Erwin Chemerinsky, Contributing Columnist: Judge Neil Gorsuch’s confirmation hearings were rendered a farce by his unwillingness to answer any questions about his views on legal issues. ... there is no justification for his refusal to answer questions; a justice is not deemed biased once his or her views on legal issues are known. ... the Senate should deny confirmation to Judge Gorsuch and any nominee who refuses to answer questions about his or her position about important legal questions.... There are three possible justifications for a nominee not answering questions, but none is at all persuasive.
GOP Dares Call Gorsuch Filibuster Unprecedented—While Ignoring Their Blockade Of Garland (Talking Points Memo, 03/30/17)
Tierney Sneed: A mass amnesia has fallen upon Republican senators.
They seem to have forgotten about that time they refused to give President Obama’s nominee for the Supreme Court an up-or-down vote – or even a hearing – last year. Now they are claiming that Democrats are the norm-breakers for threatening to filibuster President Trump’s own Supreme Court nominee, Neil Gorsuch.... Without irony or self-awareness, GOP senators are now bashing Democrats for preparing to launch “the first partisan filibuster” of a Supreme Court nominee and most aren’t even acknowledging that their blockade achieved the same goal through different means.
Letter: Young's vote for Gorsuch is unacceptable (Indianapolis Star [IN], 03/30/17)
Ben Brown: Sen. Young’s vote most troubles me because Judge Gorsuch is an enemy to Hoosier workers, the backbone of this state. Judge Gorsuch refused to acknowledge his failure in ruling against a truck driver who was fired after he left his trailer on the side of the road in subzero temperatures to save himself from freezing to death. Sen. Young’s vote is a vote for the same side as the corporate elites that are taking jobs from factories, like Carrier, the same corporate elites that fired that truck driver for saving his own life, and the same corporate elites who are backing Judge Gorsuch’s nomination as a man who will rule against workers.
Gorsuch does not deserve approval (Marietta Daily Journal [GA], 03/30/17)
Margaret Lovell, Letter to the Editor: I’m particularly worried about the damage to women and the LGBT community that Judge Gorsuch could do as a Supreme Court justice. His history not only of backward-looking rulings, but also of acceptance of money from corporations makes him a poor choice for a lifetime appointment. I do not believe he will rule impartially on the merits of the cases brought before the court. Further, because Judge Garland, an eminently more qualified nominee, was denied even a hearing, Judge Gorsuch certainly does not deserve your approval.
Letter: Reject Gorsuch (Deseret News [UT] , 03/30/17)
Daniel Geery: Judge Neil Gorsuch well knows that he is fighting to take a seat on the Supreme Court, a seat that should have gone to Judge Merrick Garland .... Gorsuch's testimony strengthened the already powerful argument for rejecting his nomination, based on his pro-corporate track record
Gorsuch and the Senate GOP’s Alternative Universe (People For blog, 03/30/17)
Paul Gordon: If Gorsuch has earned so little bipartisan support that he cannot get the support of 60 senators (as all six successful nominees of the past three presidents were able to do), Mitch McConnell is threatening to change the Senate rules to allow Supreme Court nominees to be confirmed by party-line majority votes.... Republicans refused to even hold a hearing for Merrick Garland .... Republicans insisted on a 60-vote threshold for three of President Obama’s D.C. Circuit nominees, regardless of who they were .... this may have been the least transparent selection process in history, designed to lead to an extremist nominee rather than one who could garner bipartisan support.... They held Obama circuit court nominees to a 60-vote threshold, then refused to allow votes at all on three D.C. Circuit vacancies regardless of who they were, and then refused to even hold a hearing for a Supreme Court nominee.
Not Meeting with Senators Is a New Low in the Supreme Court Confirmation Process (Huffington Post, 03/30/17)
Christopher Kang, Contributor: In 2009 and 2010, I was Special Assistant to the President for Legislative Affairs, and I led the Senate outreach and strategy for the confirmations of Justices Sotomayor and Kagan. Out of respect for the process, the Senate as an institution, and Senators as individuals, we proactively offered a courtesy meeting to every single Senator.... these meetings are about more than just trying to win votes. They are about respect for the Senate as an institution—a co-equal branch of government that is constitutionally responsible for providing advice and consent on Supreme Court nominations.
If you don’t understand this, that raises serious questions about your judgment and independence.
And I’m not saying that Judge Gorsuch himself is necessarily behind these decisions to refuse to meet with Senators Cortez Masto and Duckworth. ... But now that he presumably knows, he is responsible to address the deep disrespect that these Senators—and likely many other Senators on their behalf—rightly feel.
If he had time this week to meet a second time with Senator Manchin, surely, he has time to meet Senators Cortez Masto and Duckworth.
‘Politics as usual’ has come to an end (San Francisco Chronicle [CA], 03/30/17)
Op-Ed by Rokhini Prabhu: We at Indivisible SF know Feinstein has it in her to be a fighter. ... We also know, should Feinstein choose to fight, she’d bring a powerful hand to the table. As ranking member on the Judiciary Committee, Feinstein is critical to the review of judicial nominees, including those to the Supreme Court.... Now is the time for her to filibuster Supreme Court nominee Neil Gorsuch.
When faced with the erosion of democracy, we do not compromise. We resist.
[Editorial] Cory Gardner should reject the nuclear option: As qualified as Neil Gorsuch is, ending the Senate filibuster isn’t worth his confirmation (Denver Post [CO] , 03/30/17)
DENVER POST EDITORIAL BOARD: we strongly disagree with the strategy to deploy the rule change, as the filibuster it would end serves as a critically important safeguard that would be dangerous to lose.
The rule change, which would forever eliminate the filibuster from interfering with the Supreme Court confirmation process, would only exacerbate the hyperpartisan culture in Washington. Moreover, such a change would likely usher in a future in which the Senate loses its more deliberative contribution to American legislation.... Gardner won our support in 2014 because Congress was dysfunctional and needed a fresh leader. Here is his chance to prove he’s not a lockstep GOP minion, but a free thinker.... we don’t blame Democrats for their anger. Senate Republicans earned the opposition party’s wrath in deciding not to even debate President Barack Obama’s nominee, the also eminently qualified Merrick Garland, ... presidents have known in making their nominations that the hurdle exists, and have tailored their picks accordingly. ... Better to have the seat unfilled until senators can grow up and do right by the American people.
Trashing the filibuster over a single nominee would be doing a judge of Gorsuch’s caliber — and the nation — a terrible disservice.
The Empty Supreme Court Confirmation Hearing (New York Times, 03/30/17)
Linda Greenhouse, Op-Ed: If Judge Gorsuch wasn’t the least forthcoming Supreme Court nominee ever to appear at a confirmation hearing, it’s hard to imagine one who could be less forthcoming while still breathing. More interesting and less predictable answers could have come from Siri on an iPhone. ... He never embraced even the most universally acclaimed landmarks, not even Gideon v. Wainwright, the 1963 decision that gave indigent criminal defendants the right to a free lawyer.... Judge Gorsuch insisted that it would be “unfair” to litigants before the Supreme Court to “tip his hand” on how he regarded prior cases — any prior case, no matter how ancient or uncontested. That is actually a fatuous position.
The 12 times Republicans insisted on a 60-vote threshold for Obama’s judicial nominees (American Constitution Society Blog, 03/30/17)
Christopher Kang, Guest Post: Many Senate Democrats believe that a Supreme Court nominee should be within the mainstream and therefore able to earn the support of 60 Senators. Given the stakes, this hardly seems unreasonable, but Republicans now claim that a 60-vote threshold for judicial nominees would be unfair. Here are the 12 times they insisted on a 60-vote threshold for Obama’s lower court nominees—and, really, once Republicans demanded that a trial court judge in Rhode Island needed 60 votes, shouldn’t Democrats be able to ask for the same for the highest court in the land?
Gorsuch’s Ideology Has Harmed People With Disabilities (People For blog, 03/30/17)
Paul Gordon: During Neil Gorsuch’s confirmation hearings, many Americans were shocked to learn just how insensitive President Trump’s Supreme Court nominee can be to people with disabilities—even children.