Public Citizen v. United States Department of Justice

PETITIONER: Public Citizen
RESPONDENT: United States Department of Justice
LOCATION: Reproductive Health Services

DOCKET NO.: 88-429
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT:

CITATION: 491 US 440 (1989)
ARGUED: Apr 17, 1989
DECIDED: Jun 21, 1989

ADVOCATES:
David L. Shapiro - on behalf of the appellees
Eric R. Glitzenstein - on behalf of the appellant, public citizen
Paul D. Kamenar - on behalf of the appellees

Facts of the case

Question

Media for Public Citizen v. United States Department of Justice

Audio Transcription for Oral Argument - April 17, 1989 in Public Citizen v. United States Department of Justice

Paul D. Kamenar:

"The Defendant admits that most candidates for nomination, which have not received a not-qualified rating by the ABA Committee have not been recommended by the Attorney General for nomination to the President."

David L. Shapiro:

We believe that if the Court thinks it's not too late to consider the ABA's raising of the brief, then it would be appropriate to remand it.

Well, now you're saying the word most; before you said almost invariably.

David L. Shapiro:

We have not raised the issue here.

I'm just a little concerned about your use of extreme language.

David L. Shapiro:

We have only tried to respond in a footnote to the ABA's effort to raise it.

Paul D. Kamenar:

Yes, Your Honor.

David L. Shapiro:

It's against this background, then, that we think the question... the very difficult question of statutory construction must be considered.

I'm sorry.

David L. Shapiro:

I think at the outset, with the question... the question of statutory construction, we should emphasize, is not really a question of plain meeting or not plain meeting.

Where did you read from on page 60?

David L. Shapiro:

The Appellants come here clad in the armor of plain meeting, or at least purport to, but the fact is that this statute is so broadly and sweepingly written that it has been consistently recognized not to have any ascertainable plain meeting.

Paul D. Kamenar:

Page 60 of the joint appendix, Your Honor.

David L. Shapiro:

The broadest possible reach of the definition of an advisory committee under this statute could apply to any situation in which the Executive tries to obtain the help of two or more people if one of those people is not a Federal employee.

But which paragraph?

David L. Shapiro:

To give the statute that kind of broad reading has been consistently recognized to threaten to cripple the Executive process of consultation and to raise the most serious issues of separation of powers.

Paul D. Kamenar:

It's paragraph 6, about middle of the way down.

David L. Shapiro:

The result is that from the very beginning, the statute has not been given the broadest, most sweeping construction that the language might justify.

Paul D. Kamenar:

Nevertheless, Your Honor, this is important to show that the... the ABA Committee is heavily relied upon by the Department of Justice in making its decisions as to who to recommend to the President to be a Federal judge.

David L. Shapiro:

There are many examples of that.

Paul D. Kamenar:

Let me just sum up in this way, in terms of the facts.

David L. Shapiro:

A few of most significant, I think, for our purposes include some, which the Appellants have conceded in this Court.

Paul D. Kamenar:

The ABA--

David L. Shapiro:

For example, despite the sweeping language of the statute, it is thought to to apply to consultation of informal or ad hoc groups, at least where the advice sought is not clearly spelled out in advance.

Well... go ahead, please.

David L. Shapiro:

Second, it is thought, under the regulations of the GSA, and again, appellants appear to concede this point, that the Act probably does not apply if the advisory group does not have some sort of preferred position in the hierarchy of those groups whose advice is sought, which may, indeed, require the communication of some confidential information.

Go ahead.

David L. Shapiro:

Third, the Act has been held not to apply to an advisory committee that has operational as well as advisory functions, the Bicentennial Commission being an example of that in a case prosecuted and lost by Public Citizen in the courts below.

Paul D. Kamenar:

--The--

David L. Shapiro:

Finally, as an example, the Act has been held not to apply in cases in which the advice of the group is sought from the individual members of the group rather than on some consensus basis from the group as a whole.