Friday, March 18, 2005
Courts Rejects Challenge to Secrecy of Judicial Advisory Panel
From Staff and Wire Service Reports
A private citizen cannot sue to enforce the open meeting requirements of the Federal Advisory Committee Act, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
“FACA instead appears to contemplate that monitoring and oversight of compliance with its requirements will be achieved, not through private enforcement, but rather by governmental regulation,” Senior Judge David Thompson wrote.
Responsibility for the administration of the act has been divided among Congress, the General Services Administration, and the comptroller general, Thompson explained.
The panel ruling affirms U.S. District Judge Florence Marie Cooper’s dismissal of an action brought by Los Angeles attorney Patrick Manshardt challenging the operation of the committee created by the Bush administration and Sens. Dianne Feinstein and Barbara Boxer to vet judicial nominees.
The suit was filed by Patrick Manshardt, an attorney and conservative activist who sought appointment as U.S. attorney for the Central District of California in 2001. He alleged that the Federal Judicial Qualifications Committee violated FACA provisions requiring that a committee formed to advise the executive branch file a charter with the GSA and conduct its meetings in public.
The Federal Judicial Qualifications Committee consists of six members from each of the four federal judicial districts in the state. Half the members are appointed by Boxer and Feinstein, and half by committee chairman Gerald Parsky, a Los Angeles attorney and confidant of President Bush.
A subcommittee, made up of the members from the district in which a vacancy exists, recommends three to five candidates, who are then reviewed by Parsky, who reports his findings to the White House.
The members appointed by Parsky also advise with respect to the appointment of U.S. attorneys. Manshardt claimed the Boxer and Feinstein appointees also had input into those appointments, but the defendants—the committee, Boxer, Feinstein, and Parsky—all denied that allegation.
All of the candidates nominated by President Bush on the committee’s recommendation have been unanimously confirmed by the Senate.
Manshardt yesterday said his real motive for the lawsuit was an effort to disband the committee because, he said, it does not serve Bush well to have Feinstein and Boxer appointing half the committee members.
If his suit prevailed, he speculated, the committee would be disbanded. In its place would be a committee of Republican House members and officials from the Bush administration.
Usually, senators of the president’s party, or House members of the president’s affiliation compose most of state judge-picking committees nationwide if neither of a state’s two senators are from the president’s party.
These more traditional committees are not subject to public access rules.
No Private Remedy
Thompson, writing yesterday for himself, Judge Michael Daly Hawkins, and Senior Judge John T. Noonan, explained that a statute may only be enforced by a private lawsuit if Congress “displays an intent to create not just a private right but also a private remedy.”
Since Congress neither explicitly nor implicitly created a private remedy for the alleged violations Manshardt complained of, Thompson said, it was unnecessary to address other issues raised by the defendants, including claims that the group is not a federal advisory committee within the meaning of the act and that the suit raised a nonjusticiable political question.
Manshardt said he was disappointed with the ruling, which was based on the separation of powers between the judicial and executive branches of government. “The president in this process is giving a huge seat at the table to the Democrats, who he cannot even get to allow a vote on his judicial nominations to the court of appeal,” he said.
Joseph Klapach, the attorney for the committee’s chief, Gerald Parsky of Los Angeles, said the committee was shaped with the understanding that Senate Democrats are needed to confirm judges.
“Obviously, the input of Senate Democrats is important,” Klapach said. “To have these groups meeting and considering this stuff in a confidential manner is appropriate.”
Feinstein issued a statement late yesterday, saying she was gratified by the ruling and hoped that similar committees could be set up in other states “as a way of breaking the logjam that has enveloped the entire judicial nomination process. “
The senator declared:
“California’s commission has been a clear-cut success.† It has opened the door for the speedy approval of 15 district court judges.† These judges are qualified.† They are mainstream.† And they are now sitting on the bench, helping to reduce the enormous backlog of cases facing California’s districts.”
A spokesman for the senator said earlier in the day that an agreement has been reached to continue the committee process for the president’s second term.
The case is Manshardt v. Federal Judicial Qualifications Committee, 03-55683.
Copyright 2005, Metropolitan News Company