The Republican Senate leadership’s vow to ignore any Supreme Court nomination from President Obama flies in the face of the open government principles embodied in the Freedom of Information Act, a Democratic senator said Monday.
Vermont Sen. Patrick Leahy, ranking member of the Judiciary Committee, said the Republicans’ decision made last month in a “closed-door session” to change 100 years of practice and justify it as “an effort to protect the will of the American people is the most condescending and erroneous statement I’ve heard in 40 years from either party.”
Leahy spoke at the National Archives and Records Administration’s panel discussion marking Sunshine Week, calling for a return to past bipartisan support for open government and pushing for an update of the 50-year-old Freedom of Information Act.
“Without a vote” on a Supreme Court nominee to fill the seat vacated with the February death of Antonin Scalia, “American citizens will be unable to hold the Senate accountable,” said Leahy, recalling his role in the first televised Supreme Court nomination hearings for Sandra Day O’Connor in 1981.
The Republicans’ decision to hold no hearings, no votes or any meetings with whomever Obama ends up selecting so that the next president can make the nomination, “does allow some senators to vote maybe,” Leahy said. “But I didn’t get elected to a six-year term to vote maybe.”
Leahy was introduced by David Ferriero, archivist of the United States, as “the leading champion of FOIA and open government,” and a member of the FOIA Hall of Fame who led the effort to create the six-year-old Archives-based FOIA dispute resolution body called the Office of Government Information Services.
Leahy praised the agency whose exhibits he first visited as a teenager and as a law student at Georgetown University. “There’s a sense of history here,” he said. “You’re not on the front pages of newspapers every day, but you’re so essential. Any country that claims to be a democracy must create a public record, not just for history, but so the people may hold the government accountable.”
He pointed toward the display case outside the auditorium in which the Archives for Monday’s event had pulled out the original engrossed Freedom of Information Act signed by President Lyndon Johnson, Vice President Hubert Humphrey and House Speaker John McCormick. “They’re all gone but their principle is still there,” Leahy said. “Every year during Sunshine Week we commit to the fundamental principle of the public’s right to know. A government of the people, by the people and for the people can still be hidden from the people,” with resulting corruption.
He then plugged the FOIA Improvement Act, which was blocked by House Republican leaders in the past Congress, and said it is gaining bipartisan support. (A version cleared the House in January, but it differs from the one that has cleared the Senate Judiciary Committee.)
That bill, Leahy said, would bring FOIA into the 21st century by putting documents online for instant accessibility and by codifying the “presumption of openness” that in recent decades was favored by presidents Clinton and Obama but not by President George W. Bush, who canceled an executive order. “Every single senator takes an oath” to uphold laws, Leahy said. “Let’s choose sunshine over secrecy. As policymakers, our job is to assure access,” he added. “So as the 50th anniversary of FOIA approaches, let’s reaffirm it. Because 50 years from now, at FOIA’s Centennial, a new generation will look back and will gauge our confidence in having government open to all no matter the politics. Let them say we said, ‘Let the sun shine in.’ ”
Ferriero, in earlier remarks marking Sunshine Week (which coincides with President James Madison’s birthday), noted that FOIA was actually introduced 12 years before it became law, and that LBJ signed it quietly, without the bill signing ceremonies he was famous for. “Good records management is the backbone of open government,” Ferriero said. The National Archives “exists to provide access.”