Monday round-up

In The New York Times, Adam Liptak and others look at the effect on a young Neil Gorsuch of his mother’s experiences as EPA administrator during the Reagan administration, noting that if “he survives confirmation, he will have conquered the capital that did her in.” In The Wall Street Journal, Beth Reinhard and Jess Bravin report that although President Donald Trump, in announcing Gorsuch’s nomination to the Supreme Court, cited Gorsuch’s work with two volunteer legal assistance programs at Harvard Law School as evidence of the judge’s “’commitment to helping the less fortunate,” “roughly three dozen students who participated in the two programs while Mr. Gorsuch was at Harvard Law School from 1988 to 1991 said they have no recollection of his involvement.” At Empirical SCOTUS, Samuel Morse looks at “the average length of time Supreme Court nominees have waited before having a Senate vote on their nomination under differing Congressional compositions” and concludes that “we might expect a vote on Judge Gorsuch’s nomination in the seventy-five to one-hundred-day range from his nomination on January 31, 2017, placing the potential vote between approximately April 17 and May 11 of this year, whether or not the nuclear option is invoked.”

At the Federalist Society blog, Raymond J. Nhan and David Dewhirst observe that the addition of Gorsuch to the court could enable the justices to overrule a 1977 case “holding that public employees could be forced to pay unions compulsory agency fees as a condition of employment,” because “Gorsuch’s opinion in the Hobby Lobby case seems to demonstrate his conviction that individuals should not be forced to subsidize activity with which they disagree.” At the Library of Law and Liberty, Richard Reinsch and Greg Weiner laud Gorsuch for his “his principled opposition to the administrative state doctrine known as Chevron deference,” which “undermines the authority of statute as expressed by the people’s representatives in favor of the will of agencies, which are shielded from deliberative politics.” In the Washington Post’s Volokh Conspiracy column, David Post endorses the nomination, calling Gorsuch “thoughtful, smart and judicious, with a deep appreciation for the constitutional role of the judiciary within a system of separated powers, and a track record of real distinction on the U.S. Court of Appeals for the 10th Circuit.”

In The Guardian, Mischa Haider and Bruce Hay weigh in on the Gorsuch nomination, arguing that the “most compelling reason to block this appointment is to retain the last remaining vestige of checks and balances in the federal government.” In an op-ed in The Hill, Marge Baker argues that “our country needs an independent Supreme Court to protect our rights and defend our laws — not one that will go along with a president’s actions if he violates the Constitution.” At Vox, Ezra Klein argues that for “the good of the country and the Court, this moment demands a compromise nominee, and Gorsuch is not that.” In The Fiscal Times, Rob Garver weighs in on Trump’s recent Twitter reference to the “’so-called’ judge” who issued a ruling barring enforcement of key elements of Trump’s executive order banning refugees and the residents of seven majority Muslim countries from entering the United States, arguing that “Trump’s attack on” the judge “is going to require a response from Gorsuch.”

In the Federal Regulations Advisor, Leland Beck regards Gorsuch’s view on Chevron deference to administrative agency interpretations of ambiguous statutes as “a worthy subject of confirmation hearings if the Committee on the Judiciary musters the acuity to raise it well,” observing that if “the courts must interpret for themselves ambiguous statues – de novo as Judge Gorsuch suggests – then a new wave of administrative law intercircuit conflicts from the dozen regional circuits may arise.” At his eponymous blog, Ernie Haffner looks at the appeals court case in which Gorsuch joined a panel ruling that “rejected Rebecca Kastl’s claim that she was subjected to sex discrimination when she was denied access to the women’s bathroom before she had gender reassignment surgery,” doubting whether “Kastl tells us much, if anything, about how Gorsuch would rule on the issue of transgender bathroom access.”


  • At the Pacific Legal Foundation, Jonathan Wood discusses a cert petition the group has filed “asking the Court to review a challenge to California’s broad suction dredge mining ban”; the petition argues that the ban “undermines Congress’ purpose in encouraging mining” and violates the supremacy clause. Wood also highlights that case in Free-cology, arguing that environmentalists’ “talk about states having to accept Congress’ decisions about federal land had an unstated qualification—except those states where environmentalists hold political power,” and that if “red states have to accept Congress’ decisions to restrict the use of federal lands, blue states have to accept Congress’ decision to encourage productive uses.”
  • In the ABA Journal, Erwin Chemerinsky looks at several cases before the court this term that ask when law enforcement officers can be sued for money damages as a result of their actions, noting that in “each of the cases, the court has to consider whether the police violated the Fourth Amendment and if so, whether the officers can be held liable or whether they are protected by ‘qualified immunity’”; he observes that because all “of these cases come to the court in the context of great national attention to police misconduct and the demands for action by Black Lives Matter and others,” the “cases will be important in defining the ability to use civil suits to hold the police accountable.”
  • In The New York Times, Linda Greenhouse observes that “the extraordinary scenes of recent days strongly suggest that the Roberts court will find itself in the national security spotlight,” and wonders “to what extent [Roberts] is willing to lead his court in standing up against a president who … may trample the First Amendment, withhold information the law regards as subject to disclosure, or defy court orders on immigration or other matters.”

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