This Sunshine Week, Judicial Nominations Remain Mostly Cloudy

Sunlight is the best disinfectant. So declared Louis Brandeis in 1913, before he went on to join the U.S. Supreme Court.

That same belief in the cleansing power of transparency led to the creation of Sunshine Week for the federal government, which this year falls on March 11-17. Sunshine Week is an opportunity to focus on accountability in government, and from the theater at the National Archives to the halls of the Department of Justice, the government is supposed to use this week to acknowledge our right to know how federal offices and agencies are spending their money and fulfilling their missions.

Notably, even the Senate Judiciary Committee is getting in on the action, with a hearing on “The Freedom of Information Act: Examining the Administration’s Progress on Reforms and Looking Ahead.”

Unfortunately, however, the GOP-led committee’s actions in the remaining 51 weeks of the year have been far less in keeping with ideals of transparency – as have so many actions of the Trump Administration and its allies on Capitol Hill. Among many other important responsibilities, the committee is charged with confirming judges to lifetime positions on the federal bench. But under President Trump, Senate Republican leaders have taken a series of steps to destroy checks and balances and rubber-stamp judicial nominees. They have disregarded the blue slip tradition, rushed stacked hearings and votes with multiple controversial nominees, sidestepped state nominating commissions, and avoided meaningful consultation with home-state senators.

Meanwhile, the sunshine report card for Trump judicial nominees is not very good.

Last year, two nominees for lifetime judicial positions stood out from the pack in terms of their unwillingness or inability to be transparent and forthcoming with the public and their representatives. Jeff Mateer, a nominee for the U.S. District Court in the Eastern District of Texas, failed to disclose to a Texas nominating commission speeches he gave calling transgender children part of “Satan’s plan.” Republicans’ own Senate Majority Whip, Senator John Cornyn of Texas, called Mateer’s omitted materials “a serious breach of protocol.” Brett Talley, a nominee for the U.S. District Court for the Middle District of Alabama, failed to disclose to the Senate Judiciary Committee online comments he made appearing to defend “the first KKK” and failed to disclose a potential conflict of interest with his wife’s White House employment.

Chairman Chuck Grassley and Senator John Kennedy of the Judiciary Committee, to their credit, pushed the Trump Administration to pull back these two less-than-forthcoming nominees.

You would think that the White House would have learned a lesson from this. Yet, sadly, in 2018, we have more of the same. When the Trump Administration nominated Ryan Bounds for a seat on the Ninth Circuit in Oregon, he failed to disclose to the Oregon judicial selection committee a series of controversial articles he wrote in the Stanford Review. These included comments like “Race-focused groups foster race-think, and the only way to rid our multicultural community of race-think is to rid it of these invidious factions. We should be cheered, however, to know that our task is not impossible. The existence of ethnic organizations is no inevitable prerequisite to maintaining a diverse community— white students, after all, seem to be doing all right without an Aryan Student Union.” Bounds failed to disclose these writings even though he was asked by the committee if there was anything in his background that could become an issue in the confirmation process. When the nature of these omitted writings came to light in media reports, Bounds apologized and resigned as chair of the Multnomah Bar Association’s Equity, Diversity, and Inclusion Committee.

Meanwhile in Wisconsin, Gordon Giampietro, nominee for the U.S. District Court for the Eastern District of Wisconsin, failed to disclose to the Wisconsin Federal Nominating Commission radio interviews in which he called LGBTQ relationships “troubled” and the birth control pill an “assault on nature,” even though the commission had asked him to disclose any information that could be personally or professionally embarrassing. Also, when he submitted information to the Senate Judiciary Committee, Giampietro failed to disclose online comments he made calling diversity “code for relaxed standards (moral and intellectual)” and criticizing the Civil Rights Act of 1964. These comments certainly seem like the kind of remarks the people’s representatives would want to know about when evaluating whether Giampietro would be a fair-minded judge for all who come before him in a courtroom.

And in Louisiana, Wendy Vitter, nominee for the U.S. District Court for the Eastern District of Louisiana, failed to disclose to the Senate Judiciary Committee several speeches, including one easily found through a quick YouTube search. In that speech, Vitter promoted materials that claim that “the pill kills” and is associated with women dying violent deaths, as well as that abortions cause breast cancer. People may disagree about the underlying issues at stake, but the Senate and the public are certainly entitled to know if a nominee has made comments that raise questions about her judgment and temperament.

This principle is one that should be very familiar to members of the Senate Judiciary Committee.

In 2010, all Republicans then serving on the Judiciary Committee joined former Ranking Member Jeff Sessions in blocking Goodwin Liu, another Ninth Circuit nominee, who supplemented his original Senate Judiciary Questionnaire with additional materials. The Republicans argued that “Liu’s unwillingness to take seriously his obligation to complete these basic forms is potentially disqualifying and has placed his nomination in jeopardy.” The committee Republicans wrote that “[a]t best, this nominee’s extraordinary disregard for the Committee’s constitutional role demonstrates incompetence; at worst, it creates the impression that he knowingly attempted to hide his most controversial work from the Committee.”

Yet not only have Republicans apparently abandoned their extreme hard-line stance on disclosure, they seem to have abandoned almost any interest in enforcing it. Last week, Judiciary Committee Ranking Member Dianne Feinstein outlined her concern that failures to disclose relevant information and materials to the committee are becoming a pattern under this administration. As she noted, “These are lifetime appointments. The committee can’t do its job and review nominees’ records if the administration hides information, and both parties should be furious at this routine practice under President Trump.”

Feinstein is right. Not just senators of both parties – but all of us – should be furious when the Trump Administration and its nominees flout the public’s right to know critical information about nominees tapped for such influential positions. Federal judges play a critical role in safeguarding our democracy and rule of law, and ensuring the proper application of important constitutional rights and essential legal protections, including protecting the right to vote, equal rights for minorities, women and LGBTQ Americans, and important protections for workers, consumers and the environment. Further, these are lifetime appointments – these people will be deciding cases and interpreting our rights and laws for the next generation.

At the beginning of this year’s Sunshine Week, former Judiciary Committee Ranking Member Patrick Leahy gave a powerful keynote address at the National Archives, declaring that “a government that hides from the people can never be a government of, by, and for the people.” Moreover, two leading Republicans on the committee, Chairman Grassley and Senator Cornyn, have done notable work in support of transparency with their efforts on the Freedom of Information Act and whistleblowers; they should apply the same principle to their work on nominations.

So in that spirit, we say to the White House, its nominees, and the Senate’s GOP leadership: Stop hiding the ball when it comes to judicial nominees. Senators should not have to play detective when reviewing the records of nominees to lifetime positions. Now is the time for senators of both parties to reassert the Senate’s role, as an independent branch of government, to provide “advice and consent” and insist on full disclosure. Now’s the time to let the sunshine in – not just this week, but every week.