People For the American Way

Why Trump’s Conduct Means that the Gorsuch Hearings Cannot Go Forward

Op-Ed

This piece originally appeared in the Huffington Post.

The hearings on the nomination of Neil Gorsuch for the Supreme Court are scheduled to start in less than two weeks, on March 20. Voices have raised legitimate concerns that the hearings cannot go forward in light of pending investigations concerning the Trump campaign’s ties with Russia and related issues. But there is another reason, related directly to the Trump Administration’s conduct concerning the Gorsuch nomination, why the hearings must be postponed: the improper and unprecedented failure of the Administration to even respond to bipartisan requests about Gorsuch’s record as a high-ranking government attorney under the Bush administration.

Back in February, Republican Senate Judiciary Committee Chair Charles Grassley and Democratic Ranking Member Diane Feinstein wrote to the Justice Department and the Bush Presidential Library requesting copies of documents, e-mails, and other materials relating to Gorsuch’s time as Principal Deputy Associate Attorney General in 2005-06. Sen. Feinstein wrote to Gorsuch directly asking about 10 significant cases handled at Justice while Gorsuch was in a leadership position there. To date, there has not been a single document produced or even a public response to any of these requests.

This is in marked contrast to what has happened with Supreme Court nominations by past Republican and Democratic presidents of individuals with significant Justice Department or White House experience. By two weeks before their respective hearings, tens of thousands of documents were produced by the Bush and Obama administrations concerning John Roberts and Elena Kagan. These documents provided critical information on the records of both these nominees. But with respect to Gorsuch, nothing has been provided with less than two weeks to go.

Why is this important? First, because there is substantial evidence that significant actions took place at DOJ on Gorsuch’s watch. As principal deputy to the third-ranking official at DOJ, Gorsuch had direct responsibility for helping supervise important DOJ components, including the Civil Rights Division and the Civil Division. As reflected by later hearings and investigations by the DOJ Inspector General and the House Judiciary Committee for which I worked, there were serious problems of politicized hiring and reassignment of Civil Rights Division attorneys and lax enforcement of civil rights laws. One individual who the Inspector General found had committed clearly improper hiring and reassignments based on politics and ideology, Brad Schlozman, was acting head of the Division during much of the specific period when Gorsuch was the principal deputy associate in charge of the Division. Although the later investigations focused on the Division itself, if Gorsuch was doing his job as principal deputy, he must have had contact with Schlozman and been aware of what was happening in the Division during that time. Documents and e-mails reflecting that are crucial to his proper vetting by the Senate Judiciary Committee.

With respect to the Civil Division, which handles most DOJ civil litigation, Gorsuch has explained in response to his Senate Judiciary Committee questionnaire that he not only helped manage the Division, but also played a role in “major litigation decisions” and in “reviewing and editing trial and appellate court legal briefs and developing legal strategy,” which consumed a “substantial amount of time.” A number of major cases were being litigated while Gorsuch was Principal Deputy. These included, for example, the Bush administration’s defense of the so-called partial birth abortion ban passed by Congress, its response to challenges to warrantless electronic eavesdropping by the Bush Administration, its defense against challenges by people being detained at Guantanamo, and its effort to uphold the Defense of Marriage Act. What was Gorsuch’s role in these and other cases identified by Sen. Feinstein? How did he contribute to the “legal strategy” and arguments in these cases? Again, proper vetting of a Supreme Court nominee like Gorsuch requires the production of documents that can help answer these questions.

And that brings us to the second reason that the failure to provide information in response to bipartisan requests is so important: the improper vetting that we have already seen concerning other Trump nominees. Whether it was insisting on eight major confirmation hearings in three days, rushed review of ethical issues, insisting that the Senate floor vote on EPA Administrator Scott Pruitt take place even as an Oklahoma judge was ordering production of e-mails that Pruitt had improperly withheld, or the rush to confirm Attorney General Sessions only to see him forced to recuse himself shortly thereafter from all investigations relating to the Trump campaign, the Trump Administration record already is clear: it has pushed to confirm nominees as quickly as possible despite woefully incomplete vetting. At least the nominees approved so far will last no longer than President Trump. But a Supreme Court justice is confirmed for life, and the influence of whoever is confirmed for the currently open seat on the Court will last far longer than President Trump. There are no do-overs when it comes to Supreme Court confirmations.

It is clear that President Trump can take action to provide the requested information promptly. It is Trump Administration handlers that determine what questions Gorsuch will answer. Attorney General Sessions has custody of the DOJ documents. And the Bush Presidential Library needs current White House approval to provide the materials that Chairman Grassley and Sen. Feinstein have requested. Republicans and Democrats alike must insist that the requested crucial information be provided promptly, and the hearings for Judge Gorsuch must be postponed until the documents are produced and Senators have had an adequate opportunity to review them.