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Fix the Court Sues Justice Department Seeking Documents on Judge Gorsuch's Tenure at the Agency

Nonpartisan Supreme Court watchdog Fix the Court filed a lawsuit in federal court in D.C. today against the U.S. Department of Justice for failure to fulfill a Freedom of Information Act request concerning Judge Neil Gorsuch that the organization filed at the end of last year.

On Dec. 22 Fix the Court requested “copies of all complaints, correspondence and any performance reviews or reprimands” involving Judge Gorsuch during his time as deputy assistant attorney general in 2005-2006, including but not limited to “digital (e-mail), print or other correspondence and attachments involving Mr. Gorsuch, including instances where he is merely carbon copied.”

The Justice Department’s response five weeks later, on Jan. 26, contained neither documents nor a request for payment but stated that the Office of Information Policy would need an additional 10 days to respond. Having not received any further information since, FTC filed suit.

“Little is known about Judge Gorsuch’s tenure at the Justice Department,” FTC executive director Gabe Roth said, “but he served during a tumultuous stretch, at a time when agency attorneys were believed to be giving legal advice in support of warrantless wiretapping on American citizens and in the run-up to the infamous dismissal of U.S. attorneys for partisan reasons.”

Roth added: “For the American people and the senators who represent them to make an informed assessment of the Supreme Court nominee, all non-classified information regarding his DOJ tenure should be out in the open. We will pursue this inquiry doggedly to ensure such information sees the light of day.”

Fix the Court’s interest in Gorsuch’s tenure at the Justice Department was elevated upon review of his Senate questionnaire, which raises questions that a response to our FOIA request may be able to elicit.

For example, while we know that Gorsuch moderated multiple panels about “war on terror interrogation and detainee treatment issues” in 2006, it is unknown at present whether he had a hand in crafting U.S. policy in these areas. If so, and if Gorsuch were to be confirmed, his prior work could potentially require him to recuse himself should a related case reach the high court.

Additionally, more than 100 civil rights groups sent a letter to Senate Judiciary Committee Chairman Chuck Grassley and Ranking Member Diane Feinstein last Wednesday raising concerns that “during the year in which Gorsuch helped manage the Civil Rights Division, political appointees there engaged in unlawful hiring discrimination against lawyers with liberal affiliations.”

The records Fix the Court is seeking may shed light on any role Gorsuch had in this controversy, chronicled in a 2008 DOJ Inspector General report.

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