A Letter to Sen. Feinstein re Neil Gorsuch

March 31, 2017

VIA FACSIMILE ONLY (202) 228-3954

Senator Dianne Feinstein
331 Hart Senate Office Bldg.
Washington, D.C. 20510

Dear Senator Feinstein,

I am writing to urge you to make every effort to prevent the confirmation of Neil Gorsuch to the United States Supreme Court.

These are extraordinary times. My reasons for rejecting Judge Gorsuch are multi-fold. First and foremost, I believe his very nomination is illegitimate. This was not a nomination for our current president to make. The Senate Republicans’ extraordinary decision to deny Merrick Garland a confirmation hearing at all was outrageous, and if followed to its logical conclusion, would lead ultimately to the destruction of the court itself. Senate GOP invoked a non-existent “lame duck” rule, disingenuously suggesting that President Obama was somehow not entitled to nominate a replacement for Justice Scalia, and that only a Republican president could nominate a new justice. This posture was all the more disingenuous because the Senate GOP knew that they could not muster a principled objection to the highly-qualified Garland sufficient to thwart his nomination by floor vote.

I repeatedly heard mention that the Senate GOP further intended to deny any nominee should Hillary Clinton have prevailed in the electoral college, for the four or eight years of her term, or for as long as the GOP held the majority in the Senate. Following this rationale to its logical conclusion, this would lead to a stalemate with no further justices ever confirmed unless one party held both the White House and a super-majority in the Senate. This would effectively destroy the Supreme Court as we know it.

Only one party opted to take that outlandish, short-sighted and politically greedy step – the GOP. The GOP opted to risk destroying the institution itself rather than allow their political opponents to participate in governance by nominating appointees. No further analysis of the relative merits of Judge Gorsuch’s qualifications is required; indeed, such analysis is mooted by Senator McConnell’s and the GOP Senate’s actions regarding Merrick Garland.

Compounding this disturbing truth, Judge Gorsuch’s nominating president’s administration is under the cloud of counter-espionage investigation. If Donald Trump’s election is determined to be illegitimate, all appointments, actions and nominations might well be determined to be illegitimate as well. In every event, such a nomination would be the functional political equivalent of the “fruit of the poisonous tree” doctrine in law. No confirmation should proceed under such a cloud.

This is not an idle concern. We are talking about an individual who, if confirmed, will have enormous impact upon me and all Americans for the rest of my natural life and indeed (and more importantly) upon the lives of my children. (Perhaps I would be less concerned if my wife had given birth to two baby corporations instead of healthy daughters, given Judge Gorsuch’s track record of consistently ruling on behalf of the former over the latter.) It cannot stand that an appointment be made under such a cloud and via such larcenous methods.

Re Filibuster

I think it was a mistake for Senator Reid to change the rules to remove the filibuster option for lower court appointments – one that ought to be corrected if possible once Democrats regain the majority. I believe I understand the reasons for the revision, and I believe the decision was justified by pointless obstructionism, but it should nonetheless be rescinded. (Obviously, I have no expectation that the GOP will reinstate the filibuster while they hold the majority, given its intended use as a tool to encourage bi-partisan consensus.)

Nonetheless, if there is a clearer example of the need to deploy a filibuster, one does not spring readily to mind. My children’s futures are at stake, and it’s outrageous and tragic to find ourselves in this position to begin with. I cannot subscribe to the notion I’ve heard proposed that the filibuster should be reserved for the next nomination(s), anticipated sometime in the next four years or so.

I have lived my entire adult life under a 5-4 conservative majority court. I’ve always considered it simply an unfortunate luck of the draw arising primarily from the timing of my birth. I shudder to think that my daughters should have to live in such a world due to preposterous and disingenuous political maneuvering, or worse, because of an act of war in our digital age by a hostile foreign sovereign.

Please, I implore you: make every effort to prevent Neil Gorsuch from ascending to the highest court in our land.


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