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

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.

Well they… they get information from the Committee, but they don’t particularly rely on any recommendation of the Committee as to who to send over to the President.

David L. Shapiro:

Now none of these constructions, all of which we believe are sincere, good-faith efforts to come to terms with a very sweeping statute, none of these constructions can be explained solely on the basis of the very sweeping language.

Paul D. Kamenar:

–I disagree with Your Honor on that, they do rely on that information–

David L. Shapiro:

They can be explained, we believe, only on the basis of a conscientious and intensive effort to figure out what it was Congress was concerned about, what it was that they were trying to do.

Well, you mean… if the ABA says they’re unqualified, they won’t be sending that name over.

David L. Shapiro:

And that is the effort that we have tried to undertake in our brief and that we urge this Court to undertake.

But there are a lot of people who are… who are passed on as qualified.

David L. Shapiro:

We believe that if you do make that examination of the history, background and concern of this Act, you discover that the primary concerns of Congress were first, with the waste of a great deal of Federal money and effort.

And the Department makes up its own mind who to send to the President.

David L. Shapiro:

Money that, at the time the Act was enacted, was approaching something like $100 million a year, and which, even under the statute has continued to mount ever since.

Paul D. Kamenar:

–If it’s qualified or better, the Department does make up its own mind.

David L. Shapiro:

The other principal concern, we believe, was essentially with the undue influence that advisory committees were thought to have on the implementation of regulatory legislative policy; matters that are clearly of continuing legislative concern and oversight.

Paul D. Kamenar:

It could very well be, even if they did rate a person as qualified, the Department would still not nominate that person to the–

David L. Shapiro:

Indeed, when this Act was introduced in the House, both the chair of the committee and the minority chair spoke of their concern that advisory committees were usurping the proper role of Congress with respect to the oversight of regulatory and legislative policy.

Of course, of course.

Mr. Shapiro, I take it that sooner or later you are going to get down to the actual language of the Act and see how you avoid that?

Well, then, you shouldn’t say that they rely on that heavily, as to whose… what name to send to the President.

David L. Shapiro:

Yes, Your Honor.

Paul D. Kamenar:

–I don’t mean to say that they rely on it exclusively; they do rely on it in the way that advisory committees are usually relied upon for their advice.

David L. Shapiro:

But I think that it has to be done against the background of these two concerns.

Paul D. Kamenar:

If there’s any doubt about… I mean, both the Department of Justice and the ABA have even acknowledged that there is a semi-official or quasi-official relationship established here between the Department of Justice and the ABA.

David L. Shapiro:

As the Act was drafted, both in the House and Senate, it spoke only of advisory committees established by the Executive or by the President.

Paul D. Kamenar:

And if there’s any doubt about whether or not this ABA Committee is a… an advisory committee and utilized as such, we think the Department of Justice answered it best itself back in 1973 and 1974, when they concluded that,

David L. Shapiro:

Indeed, presidential commissions, advisory commissions came into the process–

Paul D. Kamenar:

“under any reasonable construction of utilization, the ABA Committee is utilized by the Department.”

But that isn’t the way it was passed?

Paul D. Kamenar:

And again,

David L. Shapiro:

–No.

Paul D. Kamenar:

“an honest reading of the statute points in the direction of inclusion.”

David L. Shapiro:

The conference committee added the word utilize without any explanation.

Mr. Kamenar, do you suppose that a use by a Democratic President of the advice of the Democratic National Committee in making various Executive Branch appointments or the use by a Republican President of the Republican National Committee for getting names and making appointments, is also covered by FACA?

David L. Shapiro:

And, of course, it is sometimes thought that conference committees are not supposed to enlarge or significantly alter the effect of the statute as it has come from both branches.

Paul D. Kamenar:

Your Honor raises a good question there, and that brings to… the answer to that brings into question the… the decision of this Court recently, in the University of San Francisco Democratic Party.

David L. Shapiro:

So one possible argument is that the word utilize, in effect, did not actually change the scope of the statute, but simply was designed to clarify it.

Paul D. Kamenar:

In other words, there may be a special relationship that the President… the incoming President enjoys with his own party, such that it would be excluded from… be considered an advisory committee in that respect.

Well, you’re… you’re saying we just should ignore the word utilize?

Paul D. Kamenar:

Although I must admit that, on the face of the statute–

David L. Shapiro:

No, sir.

On constitutional grounds… you… you… you… you–

Because… there will be a lot of committees, you would say, that are utilized that are covered by the Act, I suppose?

Paul D. Kamenar:

–On… on constitutional grounds, perhaps.

David L. Shapiro:

That’s right.

Paul D. Kamenar:

But we are clearly far apart in this case where they’re relying on a private, special group, such as the American Bar Association.

David L. Shapiro:

No, we think the word utilize has had an effect, we simply don’t think that its proper scope can be determined simply looking at its dictionary meaning, just as in the O’Connor case, the proper scope of the word income taxes could not be determined by looking at the four corners of the treaty.

–But what I… I don’t understand your answer to Justice O’Connor.

David L. Shapiro:

And in the American Trucking Association case, the proper scope of the word employees could similarly not be determined.

What about her hypothetical?

David L. Shapiro:

The efforts that we’ve discussed before, to limit the scope of the Act, do not turn on the dictionary meaning of the word utilize, they turn on a concern that application of the Act, giving it its full sweep, could effectively cripple the operation of the Executive and raise serious separation of powers problems.

Why… why isn’t that covered?

David L. Shapiro:

Those issues, it seems to us, are intensified when we are talking about powers like the nominating power, the pardon power, the veto power; powers that are–

Paul D. Kamenar:

It would be… first of all we have to determine–

So what do you do to the word utilize?

You said it perhaps a special… what are you talking about, the statute?

What do you–

Are you talking about a constitutional document?

David L. Shapiro:

–I do to the word utilize… or we do, I think essentially what the Court did to the word income taxes in the O’Connor case.

Paul D. Kamenar:

–Your Honor, we would first have to determine whether or not there is a committee within the RNC or DNC that advises the President on these particular nominees.

–Well, what was that?

Paul D. Kamenar:

That’s the first statutory hurdle we have to get over.

David L. Shapiro:

The Court said that the exemption from all income taxes under the treaty did not include Federal income taxes because it was apparent from the concerns of those who wrote the treaty that the desire was to exclude people from income taxes levied by Panama and not by… from income taxes levied by the United States.

Paul D. Kamenar:

If, in fact, it is, and there… it’s a preferred source of advice, then the statute would seem to indicate that if the President relies… that a preferred source of advice on that committee, it would be an advisory committee.

David L. Shapiro:

We believe that it is equally true that there was no purpose here to regulate the activities of the committees… those committees that made no use of Federal funds, and that were in no way involved with the implementation of legislative policy.

Paul D. Kamenar:

Then we would have to reach, at that point, in a constitutional issue, if, in fact, the government… if it was going… if it was going to be determined that that DNC or RNC committee must come under the strictures of the Act.

David L. Shapiro:

But, rather, were involved entirely, and at their own expense, with advising the President on matters of his exclusive concern.

Paul D. Kamenar:

But that… we don’t have to reach that kind of a question in this case because, what we are talking about is what Congress intended to do in terms of trying to have some public disclosure as to how private interest groups are working in the decision-making process.

David L. Shapiro:

There is not one reference in this very elaborate legislative history to the very well known activities of this Committee at the time, or indeed, to any activities of the President that fall into the categories that we are discussing.

Paul D. Kamenar:

I think the American people realize that the President is relying on his own party for advice, in terms of how to make decisions, and perhaps the public interest is not necessarily as well served, need to be served, as opposed to the President or the Executive Branch relying on a wholly private trade group, labor group, or industry group, to tell it how to do its business.

You do not place much confidence in the case of Church of the Holy Trinity?

What about the Association of the Bar of the City of New York?

David L. Shapiro:

We do, Your Honor.

Did you find out that they were having any influence?

David L. Shapiro:

We have cited the history–

Paul D. Kamenar:

In terms of giving their advice to the Department of Justice, we think that the… the criteria that we’ve developed, with respect to the preferred source of advice of this committee, how it is utilized by the Department of Justice, would distinguish the ABA from all the hypotheticals, including Your Honor’s hypothetical, in terms of whether or not they would come under the Advisory Committee Act or not.

You certainly don’t place much confidence… or emphasis on it in your brief.

Paul D. Kamenar:

We think that… if you look at the GSA regulations, they look at whether they use a common sense approach–

David L. Shapiro:

–We’ve cited cases that cite it–

Well, did you?

David L. Shapiro:

[Laughter]

Did you look at what influence, if any, that the Association of the Bar of the City of New York had?

David L. Shapiro:

And we are happy to rely on it.

Paul D. Kamenar:

–We didn’t investigate the Bar Association of New York, but it’s our–

David L. Shapiro:

The case is very much like the O’Connor case, like the American Trucking Association’s case.

My point is, you put the ABA out there all by itself, and there are several others.

David L. Shapiro:

There are many cases in which words have been limited, not because of their dictionary meaning, but because it… it appeared so evident that they fell so far beyond the scope of Congressional concern.

Paul D. Kamenar:

–Your Honor, the big distinction between the ABA and the Bar Association of New York is that the ABA gets inside information.

David L. Shapiro:

In the Holy Trinity case, the… the problem was similar; the Catholic Bishop case, the problem was similar.

Paul D. Kamenar:

The Bar Association of New York does not get the personal data questionnaire, does not get the first crack, if you will, at whether or not that judge is going to be nominated… if that person if going to be nominated as a Federal judge.

David L. Shapiro:

There are so many cases in which this rule has been applied.

Paul D. Kamenar:

And that distinguishes, we believe, all the hypotheticals that the appellees and the amici try to scare this Court into thinking that they would be–

David L. Shapiro:

And the cases we believe are most significant, in which we are talking about serious constitutional questions that were never addressed or considered by Congress.

It just… it just happened that often the Association of the Bar of the City of New York interviews and passes upon people before the Justice Department has even moved.

David L. Shapiro:

In those cases, we believe it is appropriate to apply a clear statement rule.

That just so happens.

David L. Shapiro:

And, any version of that rule, I believe, would lead to the result we are contending for here.

Paul D. Kamenar:

–But, Your Honor, I don’t think the Justice Department gives them the name ahead of time, and relies on their advice before the Department of Justice moves on that regard.

David L. Shapiro:

Now, it’s for all those reasons that we believe the constitutional questions that we are raising do not need to be reached.

Just leaked it to the press.

David L. Shapiro:

But we believe it’s appropriate to discuss them both because the Court may reach them, and because we believe that they flesh out, lend substance to the arguments of statutory construction that we’re making.

Paul D. Kamenar:

Well, then… they may be… it depends upon how fast the AB… the Bar Association of New York may come under the statute, but I don’t think that the facts… haven’t been developed in that particular case as it has in this case, where the Department of Justice has conceded in their earlier memorandum that the ABA is utilized as an advisory committee under the statute.

David L. Shapiro:

The effect of the Act, if it applies in this case, is, we believe, severely to change the relationship between the Executive and Bar Committee with respect to the nominating power.

May I ask, under the terms of the statute, what difference does it make that the name is given in advance, and that they utilize the questionnaire and so forth?

David L. Shapiro:

Now the nominating power is a very special power under the Constitution, and I think must be distinguished from the appointment process.

Paul D. Kamenar:

Your Honor, I think the fact that their names are given in advance, and the questionnaire, and so forth, basically underscores the institutional and advisory relationship that they enjoy with the Department of Justice.

David L. Shapiro:

The appointment process involves both the exercise of the presidential nominating power and the exercise of the senatorial function of advice and consent.

But supposing they didn’t give the names in advance, and the ABA did it on its own, but the Department, nevertheless, continued to utilize their recommendations on a regular basis?

David L. Shapiro:

But the nominating power itself is clearly the prerogative of the Executive, and it is thought to be a very special prerogative of the Executive from the very beginning.

Paul D. Kamenar:

That may be a different situation if, in fact–

David L. Shapiro:

Hamilton, Jefferson, Washington, and others, at the very beginning, and their successors ever since, have felt that this process must be exclusively theirs, and that they must be able to consult people whom they wish to consult on an entirely confidential basis–

But not–

Mr. Shapiro, has this Act been applied to some advisory committee on ambassadorial appointments by the President?

Paul D. Kamenar:

–the Department of Justice announced that this is the person we’re considering to be a Federal judge, and anybody who wants to comment on this person’s qualifications, feel free to do so and send it to the Department of Justice.

David L. Shapiro:

–I think there may have been a point under President Carter’s Administration, when there was such a committee, which the Executive at that time may have chosen to subject to the Act.

Paul D. Kamenar:

That would be a different situation.

David L. Shapiro:

I don’t believe there was any litigation over it.

–Why would it be different under the terms of the statute if they regularly, as a matter of practice, gave special deference to the ABA thinking they–

David L. Shapiro:

At the present time there are a number of presidential advisory commissions that are subject to the Act.

Paul D. Kamenar:

Well, Your Honor–

David L. Shapiro:

I don’t believe any of them fit into the category that we are talking about today.

–They would still be utilizing–

None of them are private agencies?

Paul D. Kamenar:

–if you look at the GSA implementing… implementing regulations, it has to show whether it’s a preferred source of advice.

David L. Shapiro:

I believe, to the extent we have looked into this and we have been able… we have checked, for example, all the committees cited in the Appellant’s brief, everyone of the committees cited uses significant Federal funds.

Paul D. Kamenar:

If it does develop that they are invariably relying upon the Department of Justice… I mean, the–

David L. Shapiro:

Many were created by the Federal Government–

–What if the President announces it as a matter of policy, I think these people give… give us very reliable advice and I want you to rely on them regularly.

How about things like the Republican National Committee?

That would still be the same, whether they got questionnaires or confidential information, wouldn’t it?

David L. Shapiro:

–I know of no effort to apply the Act to any communications between the Executive and the Republican National Committee.

Paul D. Kamenar:

–That… that would probably… if they… if they consistently relied on the ABA, that would probably come under the terms of the… of the regulations.

But, theoretically, if it applies here to the ABA Committee, it would apply to that?

Paul D. Kamenar:

However, we think that it… it… by not having that information public, by using them exclusively, that highlights the importance that the ABA–

David L. Shapiro:

It might.

Well, now, when you say use them exclusively, but you just earlier agreed they do not use them exclusively, they have lots of sources of information about candidates.

David L. Shapiro:

It might, depending on a number–

Paul D. Kamenar:

–Yes, Your Honor.

Or the AFL-CIO committees in advising the President or the Department of Labor?

Paul D. Kamenar:

They use them primarily as a preferred source for the–

David L. Shapiro:

–If the President, for example, were to consult with the AFL-CIO and its Executive Council, with respect to the appointment of the Secretary of Labor, if the Act were held applicable to the ABA Committee, I find it very difficult to see how it could not be held applicable there.

Well, that’s my hypothetical.

David L. Shapiro:

And it seems to me, similar constitutional questions would arise.

They don’t have any secret… they don’t have any questionnaires or anything.

David L. Shapiro:

The nominating power, we believe, is very special because of the emphasis of the Framers on the President’s sole responsibility for the nomination, and the essential aspect that, in order to exercise that responsibility, he must have discretion to consult the people he chooses to consult in the manner he chooses to exercise.

They just say, as a matter of policy, we don’t think we want to confirm any… or submit any name to the Senate that the local bar association doesn’t endorse, or doesn’t find qualified.

David L. Shapiro:

And every president since Washington, I believe, has recognized that confidentiality is an essential part of that process, because it is only through that kind of confidentiality that he can have the kind of candor–

Wouldn’t the local bar association, then, be utilized in exactly the same sense that these people are?

So… so would you say that Congress could not enact any direct regulation of the nominating process?

Just as… Justice Marshall’s question, really, I guess.

David L. Shapiro:

–Congress’ power to regulate the nominating process, Your Honor, we believe is extremely limited.

Paul D. Kamenar:

–Yes.

David L. Shapiro:

With respect to its ability to regulate the President’s discretion in seeking advice, it is our position that Congress has no power of any kind.

Paul D. Kamenar:

I think at… at a certain point we would see… see that that kind of relationship would probably come under the terms of the statute, but I think that the Justice Department should make the first opportunity as to whether or not this statute applies in that kind of a situation.

Are there any instances where Congress does attempt to regulate the nominating process, other than the one before us?

Paul D. Kamenar:

And they haven’t.

David L. Shapiro:

I think perhaps the most relevant is in the area of qualifications for office.

Paul D. Kamenar:

Your Honor, I would like to reserve the remainder of my time for rebuttal.

David L. Shapiro:

That is, there are a number of situations where Congress has not only defined a particular or Federal office, but, as part of that process, has spelled out the qualifications for that office.

Very well, Mr. Kamenar.

That’s not true with respect to judges, is it, or is it?

We’ll recess for lunch.

David L. Shapiro:

I believe that, I’m not certain, but I believe that District judges have to be residents of the state in which they’re appointed.

Mr. Glitzenstein?

David L. Shapiro:

There is, I think a residence requirement for judges.

Eric R. Glitzenstein:

Mr. Chief Justice, may it please the Court:

By statute?

Eric R. Glitzenstein:

The Advisory Committee Act applies to entities that are structured as committees, that are established or utilized for obtaining advice or recommendations by a Federal agency or by the President.

David L. Shapiro:

Uh-huh, by statute.

Eric R. Glitzenstein:

We think that the structure of the language of the statute itself makes it plain that what Congress was attempting to do with utilized committees, was cover those entitles that are essentially used by the Executive Branch in the same manner as committees that are formally established by the Executive branch.

David L. Shapiro:

Now we don’t deny that reasonable qualifications on eligibility for office are within the authority of Congress to define those offices, but we do believe that that authority is not subject simply to a rationality test, because it does impose a very severe problem of invading the President’s authority to nominate.

Eric R. Glitzenstein:

And, indeed, that is exactly what the General Services Administration’s regulations clarify, spell out.

David L. Shapiro:

If, for example, there were a statute that said that members of this Court could only be nominated from among those who were already Federal judges, that could perhaps be rationally related to the job.

Eric R. Glitzenstein:

And, indeed, that is what the Executive Branch, ever since the enactment of the Advisory Committee Act, has basically said what a utilized committee means.

David L. Shapiro:

But we believe it would be too great an interference with the President’s authority to nominate.

Eric R. Glitzenstein:

And I think it’s useful to focus on the GSA regulations because this is the interpretation which all Federal agencies are supposed to comply with.

David L. Shapiro:

So that a very close look, we believe, must be taken, and questions of that sort.

Eric R. Glitzenstein:

And under this Court’s precedent, it is the interpretation which is entitled at least a substantial deference.

David L. Shapiro:

But the overlap between–

Eric R. Glitzenstein:

The GS–

So what’s the test you propose?

How does it… how does it happen that GSA, rather than some other agency, promulgated the regulations here?

David L. Shapiro:

–Well, in the area of qualifications, we think that inevitably the test is one of balance.

Eric R. Glitzenstein:

–Your Honor, there was an Executive Order, I believe it was issued in 1977 by President Carter, who authorized the General Services Administration to undertake the function of providing guidance.

David L. Shapiro:

In the area of the President’s ability to seek advice from the people he chooses and in the manner he chooses, we submit the test is not one of balance.

Eric R. Glitzenstein:

And, indeed, that is consistent with the statute itself.

David L. Shapiro:

That this is a matter over which Congress has no control; that Congress’ role in the appointments process, with respect to advice and consultation, is limited to the advice and consent role of the Senate after the nomination has been made.

Eric R. Glitzenstein:

I believe it is section 7 of the law, states that an agency should undertake the function of providing government-wide guidance and… in appropriate circumstances, rules that would be followed by the other agencies.

David L. Shapiro:

That the interference that this Act would impose on the very important discretion of the President to seek the advice of those he chooses and in the manner he chooses, cannot be sustained with the authority of the President under Article II.

Eric R. Glitzenstein:

And, indeed, that has been done by the Federal Government ever since FACA was first enacted in 1972.

David L. Shapiro:

If there are no further questions.

Eric R. Glitzenstein:

And interestingly, even before the statute was enacted, the Executive Branch had issued several Executive Orders, which contained very parallel provisions and requirements, and coverage, to what the GSA currently says the coverage of the statute and the various requirements of the law should be.

David L. Shapiro:

Thank you.

Eric R. Glitzenstein:

President–

Thank you, Mr. Shapiro.

Now the GSA maintains lists of committees that are covered, is that right?

Mr. Kamenar, you have two minutes remaining.

Eric R. Glitzenstein:

–Your Honor, what GSA does is essentially take from each of the various agencies those committees which have been chartered in compliance with the law; and it puts all of those committees together in an annual report… we’re up to the 17th annual report this year… and submits those to the President.

Paul D. Kamenar:

Just briefly, Your Honor, to rebut some of the points being made here by opposing counsel.

Eric R. Glitzenstein:

Then the President, under the Act, is required to take that list and, in turn, provide that to the relevant committees of Congress.

Paul D. Kamenar:

They’re worried about interfering with the powers of the President, in crippling the presidency in this particular situation.

So it doesn’t include in the list any committees that are not chartered?

Paul D. Kamenar:

They have yet to talk about how filing a simple charter would somehow bring the presidency to a grinding halt, to let the public know what is the purpose of the ABA Committee in terms of evaluating candidates.

Eric R. Glitzenstein:

That is correct, Your Honor.

Paul D. Kamenar:

They talk about having to have people attend these meetings, yet the Attorney General, William Saxby himself, stated that applying this law should,

Eric R. Glitzenstein:

If does not include and of the committees which have not been chartered under the law.

Paul D. Kamenar:

“have little practical effect upon the ABA Committee.”

Eric R. Glitzenstein:

That is GSA’s cut-off point for what it will include in the list.

Paul D. Kamenar:

precisely because they have very few meetings in which they conduct their business.

Eric R. Glitzenstein:

In other words, if an agency is not using a committee in compliance with the statute, it doesn’t, therefore, come to GSA and say, we have committee X, Y and Z, which has not been chartered under the law, that will not be included in the list.

Paul D. Kamenar:

So it would not be as intrusive as they would say.

And the ABA Committee has, of course, never been on the list?

Paul D. Kamenar:

And it seems that the government is worried about somehow federalizing this particular ABA committee, but I would not that even the ABA themselves think of themselves as a quasi-official or government official.

Eric R. Glitzenstein:

That is correct, Your Honor.

Paul D. Kamenar:

During Justice Kennedy’s hearings, Senator Grassley asked Judge Tyler, who is chairman of the ABA Committee,

Does the record tell us how many of those committees receive any kind of government financing for their activities?

Paul D. Kamenar:

“I’m trying to have a public dialogue with you based on the quasi-public function that you serve.”

Eric R. Glitzenstein:

Your Honor, the GSA guidelines do not provide for that particular breakdown and, in turn, the President’s handbook on the Advisory Committee Act has never spelled out which… which committees take Federal funding and which do not.

Paul D. Kamenar:

“Maybe you don’t think that you serve that kind of function.”

Eric R. Glitzenstein:

It does include both established and utilized committees.

Paul D. Kamenar:

Mr. Tyler: “I agree, we do”.

Eric R. Glitzenstein:

For the Department of Transportation, for example, it submits to the GSA committees that are pre-existing, independent entitles that are simply utilized by the government.

Paul D. Kamenar:

And again, that was reiterated during the hearings for Judge Bork.

Eric R. Glitzenstein:

So the Department of the Transportation, which uses a substantial number of advisory committees, would include some that are not committees taking Federal funds.

Paul D. Kamenar:

So it seems to me that Justice… Justice Kennedy is correct, that that’s more of a First Amendment argument, rather than whether or not this Committee comes under the statute.

Eric R. Glitzenstein:

But I cannot answer precisely how many.

Paul D. Kamenar:

With respect to the statutory interpretation argument, I think there is argument is pretty absurd, because if they’re talking about whether Congress intended to regulate the presidential advisory committees, they expressly provided in the statute a provision for presidential advisory committees.

Does the committee have to be utilized over a period of time before it’s utilized within the statutory definition?

Paul D. Kamenar:

I don’t see how Congress could get any clearer that that’s what they intended to do.

That is to say, suppose the Attorney General said, the next three judges I am going to appoint in this state I want to consult… then fill in the blank: American Trial Lawyers-Association, NAACP.

Paul D. Kamenar:

And certainly Congress knows that the President exercises exclusive powers and exercises shared or concurrent powers.

Eric R. Glitzenstein:

Your Honor, I–

Paul D. Kamenar:

And they did give exemptions to the President for advisory committees for the CIA.

And… and I want to use them in the same way I use the ABA.

Paul D. Kamenar:

And I don’t think we should carve out a special exemption for the ABA in this statute.

Eric R. Glitzenstein:

–Your Honor, I think that the effort on the part of Congress was to apply the statute to those committees that are being used in the same manner as an established committee.

Paul D. Kamenar:

Thank you, Your Honor.

Eric R. Glitzenstein:

And therefore, it doesn’t matter so much whether it’s prospective or whether it’s something which is on-going.

William H. Rehnquist:

Thank you, Mr. Kamenar.

Eric R. Glitzenstein:

If the Federal Government, for example, were to establish a committee and say, we are now formally establishing an advisory committee to report on subject X, and from henceforth, it will provide recommendations on a particular subject, say, for example, ethics in government, to take a recent advisory committee that has been in the news, that would clearly be subject to the law.

William H. Rehnquist:

The case is submitted.

Eric R. Glitzenstein:

The question is whether the intent is to use that committee as a preferred source of advice over a period of time, and that can apply, I believe, Your Honor, to a committee which is going to be used prospectively–

So there… so there is a time component?

And if you use the American Trial Lawyers or the NAACP for three appointments, then you’re within the statute?

Eric R. Glitzenstein:

–Your Honor, I think that the test is not so much whether it’s a particular period of time, so much as it is a question of whether on a particular subject matter that entity will be used as a preferred source of advice or recommendation.

So if that… so, then it’s true even if only there… there is consultation with only… with respect only to one appointment?

Eric R. Glitzenstein:

And, indeed, Your Honor, there is case law which would support that result.

The National Nutritional Foods Association case involved a one-time meeting; the Edwards case, which we cite, involving a committee set up to provide advice and recommendations which involved a Department of Energy policy was a one-time meeting.

The focus, again, is upon the nature of the committee and how it is being utilized, not so much upon the number of meetings that are being held.

Now I would say that you have a much easier case, as here, where the committee, over a significant period of time, has performed the same or substantially the same function of providing advice or recommendations on a particular subject matter.

And, indeed, that is precisely what the GSA regulation said.

And I think that also may relate to a question that Justice Stevens asked before, about the us of confidential information.

I think that a committee can still be an advisory committee if it doesn’t use confidential governmental information.

But if it does use confidential governmental information that the government does not otherwise have to provide to it, and, indeed, does not provide to any other member of the public, then you have very heavy support for the proposition that it is an advisory committee.

And I think that is supported by the Justice Department itself when it first looked at this question in the early 1970s.

And I’m quoting from a February 1974 Office of Legal Counsel memorandum on this subject, which says,

“The major function of the ABA Committee is to provide to this Department advice as to the qualifications of persons being considered for Federal judgeships.”

“A semi-official relationship has been established.”

“The Committee obtains confidential information from the Department, without which the Committee could not function.”

“In effect, the Department solicits the Committee’s views; the Committee could not judge the qualifications of prospective nominees without its special relationship with the Department.”

And I think the point being made, Justice Stevens, was that where an agency goes to a committee or an entity and says, here is otherwise confidential information.

We would like your views on that subject.

It certainly supports the proposition that the government is intending to use that entity as an advisory committee.

But the statement says it couldn’t function without it.

It functioned many years without it, didn’t it?

Eric R. Glitzenstein:

Well, Your Honor, in terms of–

Didn’t it?

Yes or no, didn’t it?

Eric R. Glitzenstein:

–It functioned, but not in this sense.

But it functioned?

Eric R. Glitzenstein:

It did not function as an advisory committee in the sense that it obtained information from the government and was asked to participate in that process.

I understand that’s all in that opinion letter, but what is the statutory foundation for the… this emphasis on confidential information?

Eric R. Glitzenstein:

Your Honor, I think the statutory emphasis, once again, is the parallel between established committees and utilized committees.

Eric R. Glitzenstein:

And that’s not to say that every established committee is necessarily obtaining confidential information.

But I think the notion was, when the government establishes a very unique relationship with a particular entity and says, we’re providing you with this information so that you can advise us, that suggests that you do have strong support for an advisory committee.

I’m not saying, once again, Your Honor, that that is the only criteria that is relevant to–

I don’t understand why it’s even… even a single criteria.

I mean, I… it may make a difference in the way it functions, but just reading the statute, I don’t see why it makes a bit of difference whether the ABA Committee has confidential information or not, as long as they meet and discuss the qualifications of the candidate, come up with a… a not-qualified or qualified recommendation.

Eric R. Glitzenstein:

–I agree with Your Honor, even if the ABA Committee did not get confidential information, it would fall within the terms of the statute.

The only point I’m trying to make, and I don’t want to carry it too far, is that where they go even further than that, that, in our minds, resolves and doubt on this score, and suggests that you clearly have the government admitting that it is seeking this information as… advice… as a preferred source of advice.

But you want us to look at all advisory committees that have been established, and then somehow draw those common characteristics and apply them to private entities.

I haven’t reviewed the statute, but I would imagine every private… every advisory committee established by the Congress is different.

And that has simply no footing in this statute.

Eric R. Glitzenstein:

Your Honor, I think, once again, and this has been spelled out, not only by GSA, but also by OMB when it had this authority in the early ’70s, by the Justice Department itself, and even prior to that by Executive Orders which were very similar to the approach taken by GSA, that the question is, is it being used in a manner which is similar to an established committee?

Does it have fixed membership?

Does it have a structure as a committee?

Is it being asked to provide advice or recommendations on particular issues over… at a particular point in time?

And, does it have all those kinds of criteria?

And I think you will have to ask that question with respect to each committee.

If I might turn quickly to the constitutional argument, because I think it is something which is addressed significantly in the briefs.

The most important point I would like to make about it is that this is a law which has been in effect for 17 years now, and which hundreds, indeed, thousands of advisory committees, some which are very similar to the ABA Committee, peer review committees of the National Science Foundation, the National Institutes of Health, have complied with.

It’s a statute which builds into it a significant amount of flexibility in application by the Executive Branch.

And perhaps the most important point that I would make on that score involves the exemptions to the open meeting and the open document provisions.

In essence, what the statute says is that where meetings or documents would fall within exemption to the Freedom of Information Act or the Sunshine Act for meetings, that material can be protected.

The Justice Department, in the early 1970s, and I don’t think really disputes at this stage of the game, that the exemption in the statute for personal privacy material, which this Court handed down opinion on in the FOIA context just a few weeks ago, would apply to the majority, if not all, of the specific discussions of individual candidates for Federal judgeships.

We would submit that the statute clearly allows the ABA to function in a manner that is consistent with any genuine need for confidentiality.

On the other hand, where there are discussions of matters which do not fall within the exemptions, then presumably those could be open to the public.

To take an example, a general discussion by the Committee as to the role that political ideology may play in its deliberations is something which would not appear to fall within any of the exemptions.

Surely the Justice Department would have the opportunity to argue that it does, but assuming that it doesn’t there has not been a single word expressed in any of the briefs that that kind of meeting, a general discussion of role, of function, of criteria, of procedure, would, in fact, need to be protected under the statute.

To take another one of the statute’s very basic threshold requirements, that of filing a charter.

That’s contained in section 9(c) of the law.

William H. Rehnquist:

We’ll hear argument next in No. 88-429, Public Citizen v. United States Department of Justice; No. 88-494, Washington Legal Foundation v. United States Department of Justice.

Eric R. Glitzenstein:

The fundamental purpose of that provision is to have the agency that’s using a committee set out the agency’s statement as to why it’s using the committee.

William H. Rehnquist:

Mr. Kamenar?

Eric R. Glitzenstein:

Now we all know, and the record in this case suggests, that there has been some confusion as to exactly what the ABA Committee’s role in the process is.

Paul D. Kamenar:

Thank you, Mr. Chief Justice, and may it please the Court:

Eric R. Glitzenstein:

And, more importantly, what the Justice Department’s position on what the role of that process is.

Paul D. Kamenar:

The issue before the Court in this case is whether American Bar Association Standing Committee on the Federal Judiciary constitutes an advisory committee under the Federal Advisory Committee Act in the way it is utilized by the Department of Justice in obtaining the ABA’s advice and recommendations on the qualification of Federal judicial candidates.

Eric R. Glitzenstein:

And a charter, which would spell out the Justice Department’s statement as to why the Committee is being used, whether, for example, it is supposed to be considering ideology, whether it’s supposed to be considering political views, and, if not, whether, indeed, it is supposed to provide an ultimate recommendation for whether someone should be put on the Court.

Paul D. Kamenar:

And if so, whether applying that statute to the ABA Committee would violate the President’s power under Article II to nominate Federal judges, and thereby violate the separation of powers.

Eric R. Glitzenstein:

All that could be spelled out in a charter.

Paul D. Kamenar:

The lower court ruled, correctly in our view, that the ABA Committee is indeed an advisory committee under the statute, but how that applying that statute to the ABA Committee would violate the President’s power under Article II.

Eric R. Glitzenstein:

There is no reason, in any of the briefs, why that kind of material should not be made available to the public.

Paul D. Kamenar:

It’s our position that the District Court incorrectly struck down an entire statute of Congress without giving the government an opportunity to apply any of its various provisions.

Thank you, Mr. Glitzenstein.

Paul D. Kamenar:

I would like to begin my argument by briefly describing for the Court how the ABA Committee operates, and describing its institutional relationship with the Department of Justice.

Mr. Shapiro?

Paul D. Kamenar:

Since 1952 the Department of Justice has consistently utilized the ABA Committee as a preferred, if not exclusive, source of advice on the qualifications of Federal Judicial candidates to the Courts of Appeal and the District Courts.

David L. Shapiro:

Thank you, Mr. Chief Justice, and may it please the Court:

How do you know that?

David L. Shapiro:

The question in this case is not whether it is a good idea or a bad idea for the President and his Judicial Selection Committee to rely, as Presidents have relied for some 35 years, on the Council of the ABA Committee when it comes to judicial nominations.

Paul D. Kamenar:

Your Honor, we know that from information provided by the ABA and the Department of Justice.

David L. Shapiro:

The questions, rather, are whether, in enacting the Federal Advisory Committee Act in 1972, Congress intended to intrude, to regulate that relationship, and if it did, whether that intrusion is consistent with the constitutional separation of powers and, in particular, with the President’s function to nominate officers of the United States.

Where did you… where did you get the notion, though, that… that it is exclusive?

David L. Shapiro:

The answers to both questions, we submit, is no.

You say, perhaps, exclusive source of information.

David L. Shapiro:

The answer to the first question, that of statutory construction, is no because the long-standing and well known relationship between the Executive and this private group, with respect to the exercise of the nominating power, was wholly outside the scope of Congress’ interests and concerns when the enacted the Advisory Committee Act.

Paul D. Kamenar:

Your Honor, I believe if we look at the–

David L. Shapiro:

And the answer to the second question, the question of constitutionality, is no because if the Act applies to this relationship, the resulting constraint on the President’s ability to seek advice from whomever he chooses, and in whatever manner he chooses on this matter would be an unconstitutional invasion of his discretion on a subject on which he is accountable, not to the Congress or to the Judiciary, but solely to the electorate through the political process and to his own conscience.

Did the Department of Justice ever concede that?

Mr. Shapiro, does… if we reach the constitutional issue, does that require us to know a little more about how the operation of this law would affect the process?

Paul D. Kamenar:

–I think, Your Honor, in terms of the qualifications of individuals nominees, the Department of Justice has stated that… in my statement of material facts, I’m looking at joint appendix on page 56.

I’m a little concerned that we’re deciding the question, potentially, with very little understanding of how, in fact, it would impact on the operation of the Committee, or the Presidents, or the Department of Justice’s use of the Committee.

Paul D. Kamenar:

We stated,

David L. Shapiro:

Your Honor–

Paul D. Kamenar:

“The Department of Justice does not ask any outside committees, other than the ABA committee, for advice on the suitability and qualifications of possible nominees for Federal judgeships.”

It’s a little like a facial challenge when we… we don’t know how it would play out.

That’s a… that’s a… that’s a far cry from saying it’s the only source of information.

There was something in the material circulated to us from the early assessment of it by the Department of Justice to the effect that, well, we think the plain language makes it apply to the ABA Committee, but we don’t think it’ll have any substantial effect.

Just because that’s the only committee they employ.

Now that’s the very inquiry we have been making in separation of powers cases around here.

There’s a lot of other ways of getting information besides calling on the Committee.

David L. Shapiro:

–Your Honor, the case has the quality of a facial challenge.

Paul D. Kamenar:

That’s correct, Your Honor, but the Department of Justice did admit that the ABA Committee is relied upon in terms of providing it with advice on the qualifications of the nominees.

David L. Shapiro:

Unfortunately, it seems to us, both inappropriate, undesirable, and inconsistent with the statute, to have a trial run to see how, in fact, it operates.

Of course they do… of course.

David L. Shapiro:

But I do believe that it’s essential, especially because this is the first occasion on which this Court has considered the meaning and scope of this statute, even though it’s been on the books for some 17 years.

Of course, of course.

David L. Shapiro:

I think it’s appropriate, at least, to spell out what we believe the significant and inescapable impacts would be.

But you see, certainly, you shouldn’t say that… suggest that it’s the exclusive source of information about candidates.

David L. Shapiro:

And for the Court, then, to determine, in the light of those impacts, both the question of statutory construction and the constitutional issue.

Paul D. Kamenar:

If I did, Your Honor, I misspoke, and I apologize.

David L. Shapiro:

There are a number of very difficult questions of statutory construction posed by this statute.

Well, that’s what you said.

David L. Shapiro:

I don’t think they need all to be resolved in order to make these threshold determinations of what significant impact the statute would have.

Paul D. Kamenar:

I apologize to the Court for misspeaking on that.

David L. Shapiro:

Because regardless of how they are resolved, if the statute is held applicable to the Committee, there would be, I think, four direct, immediate and significant impacts.

Paul D. Kamenar:

Once a candidate has been identified by the Department of Justice as a serious candidate, that person is required to fill out a personal data questionnaire, which is designed by the ABA Committee.

David L. Shapiro:

First, there would have to be a designated Federal officer who would have to attend each and every meeting of the advisory committee.

Paul D. Kamenar:

That questionnaire is then given to the ABA circuit member, as well as the ABA Committee chairman.

David L. Shapiro:

This Federal officer would have the authority to call those meetings, to adjourn those meetings, and, we believe, would also have, under the statute, control over the agenda.

Paul D. Kamenar:

No other outside group gets that information.

David L. Shapiro:

So the immediate result would be that the Committee would lose a good deal of its private autonomy and would become subject to a significant measure of Federal control.

How long has that been–

David L. Shapiro:

Secondly–

–Has that always been in effect?

That officer would be appointed by the Justice Department, I take it?

Paul D. Kamenar:

As far as we can tell, Your Honor, that’s what the record shows; that that personal data questionnaire–

David L. Shapiro:

–Yes, Your Honor.

You know, we’ve all been… we’ve all been through this wringer.

So it would be somebody out of the Attorney General’s office?

Paul D. Kamenar:

–Well, I’m sure, Your Honors, you have, although it has been episodic with respect to some Supreme Court nominees.

David L. Shapiro:

It would be a government official who would be appointed by the Justice Department, so long as the Committee were working with the Justice Department.

Paul D. Kamenar:

It’s consistent with respect to Courts of Appeals and District Court nominees, and it’s episodic with respect to–

From the standpoint of a facial or free speech analysis, I think that raises serious concerns, but it’s not clear to me that we have enough information to say that it raises a real systemic problem with reference to separation of powers.

Well, some of us have been on the Court of Appeals also.

David L. Shapiro:

Your Honor, we believe that it fundamentally affects the relationship between what, up to now has been, the Executive on the one hand, and a purely private group on the other.

Paul D. Kamenar:

–That’s right, Your Honor, you have–

David L. Shapiro:

So that the process, which… of which this is just one part, the process of essentially federalizing that private group, there are other aspects of which that will happen, seems to us, will dramatically affect the relationship, will dramatically affect the extent to which the President, acting through his Judicial Selection Committee, can seek outside, private help in this matter.

And I never made out such a form.

David L. Shapiro:

Because not only is there a designated Federal officer, there is, under the statute, a designated management officer, whose job will be to take custody, to keep control of, all the records of this advisory committee; not simply the records of communications from the advisory committee to the Executive, but the records of the records of the advisory committee itself, the internal records of the advisory committee itself.

And it’s not been true since 1952, I can assure you.

David L. Shapiro:

Again, an effort we believe towards federalizing the operation of this advisory committee in a way which may lead the Committee itself to feel it can’t function under that regime, or will, I think, dramatically affect the relationship.

Paul D. Kamenar:

–Well, Your Honor, I didn’t mean to say that that form has been filled out since 1952, I’m talking about what the current practice is for the last… this last… the last several Administrations, and what was–

David L. Shapiro:

Third, the committee is, under the statute, made subject to the mandatory and continuing oversight of both the General Services Administration and the committees of the Senate and the House that supposedly have jurisdiction in this area, which presumably would be the Judiciary Committees of each house.

Well, how… how long a practice are we talking about?

David L. Shapiro:

Finally, the records, and these include the internal records of the Committee, together with all meetings of the Committee, would be subject to the open access provisions of the Act.

Paul D. Kamenar:

–Your Honor, I do not know that, unfortunately.

David L. Shapiro:

And the decision on whether or not to apply the exemptions that are available, would not be up to the Committee, but would be up to the Federal officers who are in charge of administering that part of the statute.

Paul D. Kamenar:

I think the Department of Justice could best ask that.

David L. Shapiro:

Unfortunately, we don’t feel that we can readily and completely accept the offer of Public Citizen, that all of the matters that need to be protected from the viewpoint of the Executive and the Committee would, in fact, be protected by those exemptions.

Paul D. Kamenar:

Again, this Committee operates in secret, and that’s what’s part of the problem here.

David L. Shapiro:

We know that the Washington Legal Foundation itself takes a different view on some of these.

Well, it was done when I was appointed.

David L. Shapiro:

We have no doubt that they would be involved in litigation if the Act were held subject to this committee.

I filled out a form, both in 1971 and 1986, I think.

David L. Shapiro:

There are a number of other related provisions which are not so important.

Paul D. Kamenar:

Well, again, Your Honor, this probably illustrates what kind of confusion we have here.

David L. Shapiro:

Apparently the relationship would have to terminate immediately, could only be renewed on the filing of a charter and other matters.

Paul D. Kamenar:

Perhaps if we applied this Federal Advisory Committee Act, we can find out exactly how this Committee is operating, and see whether they apply it sometimes, and they don’t apply it in others.

David L. Shapiro:

There would be requirements of reporting and so on.

Paul D. Kamenar:

And that precisely gets to the point I’m trying to make here.

David L. Shapiro:

So that the overall effect would be one of really destroying the private character of this organization as a consultant, with respect to the relationship to the Executive and to the President.

Well, if… but it may be just a matter of the written form having been introduced at a particular point, and the members of this Court obviously came to… came to the bench at different times.

If… if you can say all of that on this record, I’m not sure why you said in your brief in a footnote that you don’t need to address the First Amendment.

Paul D. Kamenar:

That’s correct, Your Honor.

I understand that they are alternative points, but it seems to me that these sound… each of these, like a First Amendment analysis, and if you don’t need a trial or further proceedings for the separation of powers point, I don’t see why you’d need it for the First Amendment either.

Paul D. Kamenar:

The ABA Committee member then interviews this candidate, they interview judges and practitioners in the area to get their views on the qualifications of the potential nominee.

David L. Shapiro:

The First Amendment… let me say two things about the First Amendment point on which we’ve taken a very limited position in our brief.

Paul D. Kamenar:

When this investigation is completed by the circuit member, he then, or she then makes an initial rating of that candidate; whether he is extremely well qualified, well qualified, qualified, or not qualified.

David L. Shapiro:

First, the First Amendment is being raised for the first time in this whole litigation in this Court.

Paul D. Kamenar:

And the key part of this investigation is the following:

David L. Shapiro:

The First Amendment question may raise issues of statutory construction and the reach of the statute that we do not believe have to be resolved to resolve the questions of application and constitutionality that we are raising.

Paul D. Kamenar:

If they decide that this person is not qualified to be a Federal judge, that is… is… is… that information is advised… given to the Department of justice, and almost invariably, the not-qualified rating results in the Department of Justice removing that individual from further consideration to be a judge.

David L. Shapiro:

It is our position that, to the extent and advisory committee functions in some sort of preferred capacity, receiving confidential information that is not generally available, that there is no sustainable First Amendment claim that that committee can make.

You… you speak in extremes.

David L. Shapiro:

But, in any event, we think that because the First Amendment issue may raise its own difficult issues of statutory construction, that that issue should be remanded to the lower courts if it’s–

Now you say, almost invariably.

Well, Mr. Shapiro, is it the government’s position that is has really two rounds of litigation, that it can take one position in the lower courts the first time, and then raise an issue in the Supreme Court and say, we didn’t raise it below, but we think it’s important, so send it back for another round?

Certainly there are cases where persons who have been indicated as unqualified have been confirmed.

David L. Shapiro:

–Your Honor, we have not raised the First Amendment issue in our brief.

Paul D. Kamenar:

That is the exception, not the rule, Your Honor.

David L. Shapiro:

We commented on it in a footnote only because the American Bar Association raised it as Appellee.

Paul D. Kamenar:

I direct the Court to page 60 of the joint appendix, where the Defendant, the Department of Justice, states,

David L. Shapiro:

We do not believe that that issue should be reached in this case.