Merrick Garland, President Obama’s choice to replace Antonin Scalia on the U.S. Supreme Court, has been asked by an ethics watchdog to authorize the release of any records related to allegations of misconduct during his time at the Department of Justice.
The Foundation for Accountability and Civic Trust, the watchdog group, sent Garland a letter last week calling on him to allow the Justice Department’s Office of Professional Responsibility to release any records regarding possible professional misconduct.
"As you are likely aware, it is a policy of the Department of Justice (DOJ) Office of Professional Responsibility (OPR) to refuse to confirm or deny the existence of any records pertinent to any professional misconduct without the subject’s written authorization," Matthew Whitaker, former U.S. attorney who serves as executive director for FACT, wrote in the letter Friday.
"Because you served in the DOJ for nearly ten years in both litigation and policy roles, American citizens need to know whether any such records exist and to examine any existing records in order to evaluate your qualifications to serve as a Supreme Court Justice. Without your consent, there is simply no other method for citizens to obtain this information."
Garland, who now serves as the chief judge of the U.S. Court of Appeals for the D.C. Circuit, previously worked as the deputy assistant attorney general for the Justice Department’s criminal division and later as the principal associate deputy attorney general.
The Office of Professional Responsibility is tasked with investigating allegations of misconduct involving attorneys at the department "that relate to the exercise of their authority to investigate, litigate or provide legal advice, as well as allegations of misconduct by law enforcement personnel when related to allegations of attorney misconduct within the jurisdiction of OPR," according to the department’s website.
Garland’s consent to release any such records is necessary for lawmakers to "make an informed decision" on his nomination to a lifetime post on the Supreme Court, Whitaker wrote, as well as to ensure transparency. The watchdog enclosed a form along with the letter with which Garland can give the Office of Professional Responsibility the authorization to release any existing records related to misconduct.
Obama’s decision to nominate Garland has opened up a fight on Capitol Hill. Republicans in the Senate have refused to hold confirmation hearings on Garland’s nomination and argued that the vacancy not be filled until after the November election, sparking criticism from Democrats and the White House.
However, Republicans have pointed to past efforts by Democrats to delay nominations to the Supreme Court. Obama himself filibustered the nomination of Justice Samuel Alito as a senator in 2006. Vice President Joe Biden also argued for the delay of a prospective nomination to the Supreme Court until after the presidential election when he was a senator in 1992.