New FOIA Suit Targets SCOTUS Nominations
At a Federalist Society
meeting in Texas last fall, Leonard Leo, executive vice president of the national organization, thanked Justice
Clarence Thomas for coming and agreeing to be interviewed. Thomas, with a hearty laugh, said, "Well, Leonard, since you're the third most important person in the world…."
Thomas undoubtedly was referring to the widespread
attention Leo has garnered for his role in Trump Administration judicial appointments to the U.S. Supreme Court and federal appellate courts. Leo and the Heritage Foundation's
John Malcolm were credited with building the list of potential Supreme Court nominees for Trump and supporting
Justices Neil Gorsuch and
Brett Kavanaugh through the confirmation process.
But now American Oversight, the nonprofit liberal-leaning ethics
watchdog, wants to know exactly how important Leo, Malcolm, the National Rifle Association and other groups and individuals have been in Supreme Court and other federal court nominations.
The organization's lawyers on April 1
sued the U.S. Justice Department for failing to respond to three Freedom of Information requests for records related to outside influence in judicial nominations.
“The Constitution vests the authority to appoint judges in the president with the advice and consent of the Senate, not Leonard Leo or other ideological outsiders,” said
Austin Evers, founder and executive director of American Oversight, in a statement. “Seeking outside input would be one thing, but the administration's apparent total deference appears to be unprecedented and anti-constitutional. The public should get to see the influence that is being brought to bear on the process.”
A spokesperson for the Justice Department declined to comment.
Donald McGahn, the former Trump White House counsel and
now Jones Day partner, has disputed the notion the administration outsourced its judicial selection process. He has often noted that he's long been a member of the Federalist Society.
“So, frankly, it seems like it’s been in-sourced,” McGahn
said at a Federalist Society event in Washington in 2017.
Evers is a former senior counsel in the Department of State, where he worked on oversight and transparency matters. Before that, he was a litigator at
Williams & Connolly. FOIA and other public records laws are American Oversight's primary tools and have been used to seek documents in a number of controversial matters involving the Trump Administration.
The latest FOIA suit, filed in the U.S. District Court for the District of Columbia, requests all records reflecting communications between DOJ and Leo, Malcolm, Senate Republican leader Mitch McConnell and staff, Utah Republican Sen.
Mike Lee and staff, any of the nine Supreme Court justices and 43 named individuals and organizations.
Daniel McGrath and
Elizabeth France are counsel for American Oversight.
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