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Thursday round-up

In The New York Times, Matt Flegenheimer reports that the Senate is facing “an institution-rattling confrontation” today “over the Supreme Court nomination of Judge Neil M. Gorsuch, with Democrats preparing to filibuster the selection and Republicans vowing to change longstanding rules to bypass the blockade”; Flegenheimer also reports that “a bipartisan consensus seemed to have congealed” that these developments are “terrible for the Senate” and “terrible for the country.” At FiveThirtyEight, Perry Bacon Jr. reports that the “Gorsuch confirmation could still all fall apart” if Republicans lack the “votes to ‘go nuclear’ and change” Senate “procedures, essentially wiping out the ability of a minority party to filibuster a Supreme Court pick,” but notes that even if two moderate Republicans defect, “it is hard to see where Democrats find a third vote.” At The Hill, Jordain Carney reports that Sen. Jeff Merkley (D-Ore.) held the Senate floor for more than 15 hours Tuesday night and Wednesday morning as he laid out “broad criticisms of the current Supreme Court fight, accusing Republicans of ‘court packing.’” Amber Phillips reports on Merkley’s marathon speech in The Washington Post, noting that “procedurally, there’s nothing he nor his colleagues can do to stop Gorsuch from getting a vote on Thursday to advance his nomination.” Haystack TV is offering live-stream coverage of the Senate’s consideration of the Gorsuch nomination. In The Washington Post, Elise Viebeck offers a step-by-step guide to the proceedings.

At Politico, John Bresnahan and Burgess Everett report that “Supreme Court nominee Neil Gorsuch copied the structure and language used by several authors and failed to cite source material in his book and an academic article.” In The Atlantic, Matt Ford discusses the “11th-hour curveball” created by the allegations of copying. In The Washington Post, Aaron Blake comments on the issue, observing that absent “further examples of academic wrongdoing in the nominee’s extensive works, it seems a pretty minor offense.” At Reuters, Lawrence Hurley looks at the “divisive cases concerning religion, guns and big business” that Gorsuch would help decide if he is confirmed.

At Vox, J. Paul Kelleher explores “Gorsuch’s judicial philosophy and the connection it draws between morality and the law,” arguing that it is “time to stop pretending that Supreme Court justices can decide hard cases without reference to their views about what a cohesive and defensible American moral philosophy looks like.” In an op-ed in The National Law Journal, Judith Schaeffer points out that the “business community … sees much to like in Gorsuch’s record on the U.S. Court of Appeals for the Tenth Circuit,” and that in “addition to areas including arbitration and regulation, they see a judge who favors cramped interpretations of laws that are supposed to protect workers and others.” At his eponymous blog, Eric Posner weighs in on Gorsuch’s dissenting opinion in the notorious “frozen trucker” case, in which Gorsuch relied on a literal interpretation of the term “refus[ing] to operate” to defend an employer’s decision to fire a truck driver who left his trailer by the side of the road in subzero temperatures after the trailer’s brakes locked up and heater in the cab stopped working, observing that “Gorsuch’s weird literalism, so obviously in contradiction to the sense of the statute, is hard to fathom.” Another look at the case comes in an essay by Mila Sohoni at SSRN. At Rolling Stone, David Cohen asserts that Gorsuch’s path to the Supreme Court “is riddled with historically and constitutionally exceptional circumstances.”

At FiveThirtyEight, Harry Enten observes that although a “decade ago, it wouldn’t have been difficult to imagine Republicans voting for Gorsuch and against nuking the filibuster,” it now seems unlikely that more than one or two Republican senators will vote for Gorsuch and against the nuclear option.” FiveThirtyEight also features a discussion of whether a filibuster of the Gorsuch nomination “makes political sense” for Senate Democrats. In a column for The Arizona Republic, E.J. Montini argues that Sen. John McCain (R-Ariz.) should be “the grown-up in the room” and vote against the rule change, because “[c]hanging the rule is taking the easy way out, the exact opposite of what is supposed to happen in the Senate, which is meant to be a deliberative body.” The editorial board of The Denver Post argues that “Senate Democrats ought to stop their foolish revenge plot now” and that Republicans “ought to do right by Senate tradition and the nation and step away from their rule change.”


  • At Justia’s Verdict blog, Michael Dorf discusses last week’s decision in Expressions Hair Design v. Schneiderman, in which the court ruled that New York’s credit-card surcharge ban regulates speech, arguing that “the very fact that the Court regarded the case as presenting a free speech issue at all illustrates the disturbing breadth of free speech doctrine under the Roberts Court,” and that although “the Court officially retains deferential review for laws regulating the economy, increasingly, economic regulation is vulnerable to challenge on free speech grounds.”
  • At the Sentencing Law and Policy blog, Douglas Berman considers Monday’s decision in Dean v. United States, in which the court held that a trial court can consider mandatory minimums for possessing firearms when sentencing a defendant for an underlying drug offense, observing that because “Dean seems to me to be a substantive ruling that applies retroactively,” there will likely “be many more than just a handful of ‘Dean resentencing’ efforts.”

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Recommended Citation: Edith Roberts, Thursday round-up, SCOTUSblog (Apr. 6, 2017, 7:38 AM),