Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) was among the bipartisan group of signers of a March 16 Sunshine Week letter to Comptroller General Gene Dodaro declaring that the Freedom of Information Act (FOIA) “is crucial for ensuring transparency and accountability in government, but persistent challenges continue to limit citizens’ ability to access information under the statute.”
Sunshine Week is the annual celebration of the FOIA by journalists, transparency advocates, and some elected officials. Durbin and the other signers asked Dodaro, who heads the Government Accountability Office (GAO), to investigate why there is a huge, and growing, backlog of unanswered FOIA requests at federal agencies.
But, as Sen. Charles Grassley (R-Iowa), the top Republican on the judiciary panel, made clear during the first day of Judge Ketanji Brown Jackson’s Supreme Court confirmation hearing, private citizens aren’t alone in having trouble getting government agencies to produce copies of official documents the FOIA requires to be made public.
Despite his senior position in the Senate, bureaucrats at the U.S. Sentencing Commission have turned a deaf ear to Grassley’s request for public documents created during Jackson’s tenure there that illustrate her legal reasoning. Grassley joined Durbin in signing the letter to Dodaro.
“I was disappointed we weren’t able to get bipartisan agreement to ask for Judge Jackson’s documents from her time as vice chair at the Sentencing Commission,” Grassley said in his opening statement at Monday’s hearing.
“The commission is an independent agency created to ‘advise and assist Congress and the executive branch in the development of effective and efficient crime policy.’ Unfortunately, it sounds like we’ll have to wait until those documents are required to be released—20 years from now,” Grassley told the hearing.
Jackson served for four years as vice chairwoman of the commission prior to being named a U.S. Circuit Court Judge in 2021. She was a U.S. District Court Judge from 2013 to 2021.
Grassley had tried to enlist Durbin in the effort to obtain the documents but was unsuccessful. Durbin’s committee spokesperson, Emily Hampsten, could not be reached for comment.
Grassley said everybody on the judiciary panel agrees on the importance of Jackson’s service on the commission, so there is no question about the need for the documents as part of the confirmation process.
“Democrats have argued her time on the commission is an important part of Judge Jackson’s experience that she’ll draw on as a judge. They’re right. That’s why it would’ve been good to see what her views were,” Grassley said.
Durbin has described Jackson’s experience on the commission as one of the major reasons he views her as a “jurist who understands the importance of pragmatism and real-world experience.”
The documents that were produced did not specifically represent the views of Jackson in any particular case, Grassley said the committee was told by commission officials.
Grassley said when President Barack Obama nominated Jackson to be a federal District Court judge, more than 68,000 documents were produced to the judiciary panel.
“But more than 38,000 pages are repeated copies of an email thread keeping track of tweets about the Garland nomination. Those emails contain one tweet about Judge Jackson. More than 13,000 pages are just lists of previous nominations,” Grassley said.
Grassley added that President Joe Biden’s administration has withheld an estimated 48,000 documents “under the Presidential Records Act and FOIA exemptions. That’s a lot of hiding.”
Durbin is an advocate for greater openness and transparency at the nation’s highest court in a different context. He is a major co-sponsor of legislation now before the Senate requiring the High Court to allow video cameras to record and broadcast proceedings.
“The bipartisan ‘Cameras in the Courtroom Act’ would require the Supreme Court to permit television coverage of all open sessions of the Court, unless the Court decides, by a majority vote of the Justices, that doing so would constitute a violation of the due process rights of one or more of the parties before the Court,” Durbin said in a March 18 statement.
“It’s time to put cameras in the Supreme Court so Americans can finally see deliberations and rulings on cases, which will affect them for generations to come. This bipartisan bill shines a light into the Judicial Branch of government so more than just a few hundred lucky Americans can watch proceedings in the Court’s historic halls,” Durbin said.
“Today’s bill introduction coincides with ‘Sunshine Week,’ a national initiative aimed at promoting a dialogue about the importance of open government and freedom of information,” Durbin noted in the statement.
Durbin was joined as a major co-sponsor of the proposal by Grassley.