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Public Citizen v. United States Department of Justice | 491 U.S. 440 (1989)

Since 1952, the Justice Department has sought advice from the American Bar Association’s, or ABA’s, Standing Committee on the Federal Judiciary to help the president nominate federal judges. In Public Citizen versus United States Department of Justice, the court considered whether this advisory relationship is subject to the same oversight as other federal advisory committees.

The Federal Advisory Committee Act, or FACA, governs federal advisory committees, which the statute defines to include any committee, quote, “established or utilized,” unquote, by the president or a federal agency to give advice or recommendations. FACA-governed advisory committees must file a charter, hold open meetings, and keep detailed meeting minutes and publicly available records.

Before the president formally announces nominees for federal judgeships, the ABA committee investigates candidates for the nomination and creates a report that rates their qualifications. This process, and related communications between the committee and the Justice Department, are mostly confidential. If the president ultimately nominates a candidate, the committee’s rating, but not its report, will be published if the Senate Judiciary Committee requests it.

In October of 1986, the committee refused a request by the Washington Legal Foundation for the names of candidates up for judicial nomination and for the committee’s reports and meeting minutes. The foundation then sued the Justice Department in Washington, D.C., federal court, seeking a declaration that the committee was an advisory committee under FACA and requesting an injunction ordering the Justice Department to stop consulting the committee until it complied with FACA. Public-interest group Public Citizen intervened as a plaintiff seeking similar relief.

The district court dismissed the action, holding that although the Justice Department’s use of the committee was subject to FACA, FACA couldn’t be applied in this instance without violating the separation of powers and infringing on the president’s constitutional power to nominate federal judges. The Supreme Court noted probable jurisdiction to review.

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