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Friday round-up

In the Los Angeles Times, Jaweed Kaleem and Maura Dolan report that several “legal experts who weighed in on the U.S. 9th Circuit Court of Appeals decision to not order a reinstatement of President Trump’s travel ban said they thought the administration had slim chances if it appealed to the U.S. Supreme Court.” Amy Howe covers the court of appeals decision, including the possibility that the government might seek a stay of the ruling in the Supreme Court, for this blog.

Coverage of and commentary on the nomination of Judge Neil Gorsuch to the Supreme Court continues. In The Economist, Steven Mazie breaks down the reasons why “this highly respected judge” faces “a bruising confirmation fight.” For the Associated Press, Jessica Gresko looks back at the eight men who have occupied Scalia’s seat, including Justice Robert Jackson, whom Gorsuch mentioned when he accepted the nomination and whom Scalia cited as “one of his heroes.”

At Sidebars, Randall Eliason looks at “how Gorsuch’s presence on the Supreme Court might influence the law of white collar crime,” concluding that “there is reason to believe Justice Gorsuch’s approach would indeed look a lot like Justice Scalia’s.” In Scientific American, John Echeverria surveys Gorsuch’s record in environmental cases, observing that although the judge “has participated in a only a handful of environmental law cases,” his apparent readiness to apply “the so-called nondelegation doctrine, which purportedly limits the power of Congress to make delegations of rule-making authority to administrative agencies,” to impose limits on the standing of private environmental plaintiffs to sue in court, and to curb the discretion of administrative agencies to interpret ambiguous statutes would “change, and almost inevitably weaken, environmental law.” At Justia’s Verdict blog, Michael Dorf also looks at Gorsuch’s views on nondelegation and judicial deference to administrative agencies, arguing that implementation of those views would “hobble the administrative state.”

General commentary on the nomination comes from Rep. Ken Buck (R-Colo.), who argues in The Hill that Gorsuch’s “thoughtfulness and his principles” make him well suited for a seat on the court. Also in The Hill, Joel Joseph maintains that Gorsuch “does not fit the mold of a rock-ribbed conservative” and that he will be a “good, and unpredictable, justice.” In The Washington Post, Jason Murray, who clerked for both Gorsuch and Justice Elena Kagan, asserts that “both my former bosses share a profound commitment to the rule of law,” which “means that all litigants before them are treated evenhandedly, and that the cases they hear are judged only on the strength of the legal arguments, without regard to partisan politics.” At Daily Kos, Joan McCarter argues that “Neil Gorsuch’s being ‘disheartened and demoralized’ by Trump’s rage-tweets about the judiciary has been scripted by Republicans” and that “a public declaration that the president shouldn’t be tweeting about judges is not enough to make the nomination palatable.” And in Vanity Fair, Scott Turow pushes back against efforts “to mainstream Colorado appellate judge Neil Gorsuch, arguing that “Gorsuch may be polite and likable, but his track record is plainly ideological.”


  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro weighs in on Lee v. United States, an ineffective assistance of counsel case in which the lower court held that the defendant could not prove that he was prejudiced by his attorney’s erroneous advice to plead guilty, which resulted in mandatory deportation, because the evidence of his guilt was overwhelming, arguing that “it may not be wise to seek acquittal by nullification, but Lee should be able to decide that the risk is worth facing as against the certainty of deportation.”
  • At Forbes, Daniel Fisher reports that the court is considering whether to review a case that would trim attorney fees in class action cases, noting that the justices may “decide as early as next week whether to hear the appeal of a Sixth Circuit decision upholding a class-action settlement that distributed only $1.6 million to consumers but yielded $2.4 million for the attorneys who represented them.”

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Recommended Citation: Edith Roberts, Friday round-up, SCOTUSblog (Feb. 10, 2017, 7:40 AM),