Public Citizen v. United States Department of Justice

1989-06-21

Headline: Court rules FACA does not apply to Justice Department’s use of ABA evaluations, allowing continued confidential ABA reviews of judicial nominees while avoiding constitutional rulings.

Holding: FACA does not apply to the Justice Department’s confidential consultations with the ABA’s judicial evaluation committee, so the Court did not decide the constitutional challenges.

Real World Impact:

Allows Justice Department to keep ABA judicial evaluations confidential without FACA disclosure requirements.
Leaves major constitutional questions about judicial nominations undecided.
Limits public access to ABA Committee reports and meeting minutes.

Topics: judicial nominations, government transparency, advisory committees, presidential appointments

Summary

Background

The Justice Department regularly asks the American Bar Association’s Standing Committee on Federal Judiciary — a private, 14-member panel that receives no federal funds — to evaluate possible federal judicial nominees. The committee uses confidential questionnaires, interviews, and rates candidates (for example, “exceptionally well qualified,” “well qualified,” “qualified,” or “not qualified”). Two public-interest groups sued, seeking to force disclosure under the Federal Advisory Committee Act (FACA). The District Court found FACA applied but held its application unconstitutional; the Supreme Court affirmed on statutory grounds instead.

Reasoning

The core question was whether the ABA committee is an “advisory committee” that Congress meant to cover under FACA. The Court examined the statute’s word “utilized,” the prior Executive Order governing advisory groups, the statute’s legislative history, and implementing regulations. It concluded Congress probably did not intend FACA’s public-notice, charter, and public-record rules to reach a privately formed, unfunded body that gives confidential advice about Presidential nominations. Because a statutory reading avoiding difficult constitutional issues was reasonable, the Court held FACA inapplicable and did not decide constitutional claims.

Real world impact

The ruling permits the Justice Department and the ABA committee to continue confidential evaluations of judicial candidates without complying with FACA’s disclosure and open-meeting rules. Plaintiffs seeking ABA charters, records, or meeting access lost on the statutory issue. The decision leaves unresolved constitutional questions about how far Congress may regulate advisory input on Presidential nominations; Senate confirmation practices (like public disclosure of ABA ratings at hearings) remain unchanged.

Dissents or concurrances

Justice Kennedy (joined by the Chief Justice and Justice O’Connor) agreed the judgment should be affirmed but disagreed with the majority’s statutory reading; he would have treated FACA as covering the ABA committee and found its application unconstitutional under the Appointments Clause.