Friday, May 13, 2005
Challenge to Judicial Nominating Panel Rejected a Second Time
Ninth Circuit Changes Basis for Earlier Ruling, but Reaches Same Result
By KENNETH OFGANG, Staff Writer/Appellate Courts
The Federal Judicial Qualifications Committee established by Sens. Dianne Feinstein and Barbara Boxer and a confidante of President Bush is not covered by a federal statute requiring open meetings of advisory bodies, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The decision was handed down by the same panel which, in March, declined to reach the issue of whether the committee was covered by the Federal Advisory Committee Act, holding instead that the act cannot be enforced by private action.
In an unusual move, the court yesterday withdrew the original opinion, ordered that it not be cited in the future, and decided the FACA coverage question, ignoring the issue that formed the basis of the earlier action. The court’s ruling on that issue had been criticized by open-government advocates across the political spectrum.
The suit — which was dismissed by U.S. District Judge Florence-Marie Cooper of the Central District of California under the political question doctrine — 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 FJQC violated FACA provisions requiring that a committee formed to advise the executive branch file a charter with the General Services Administration and conduct its meetings in public.
The FJQC 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 who served as state campaign chairman for 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 told reporters his true motivation was to force the committee to disband, taking the Democrats out of the process and forcing the president to look to GOP House members and other senior Republicans in making choices.
But Senior Judge David Thompson, writing for the Ninth Circuit, cited FACA’s definition of “advisory committees” as groups established by statute or reorganization plan or “established or utilized” either by the president or by a federal agency.
In his complaint, Thompson explained, Manshardt acknowledged that the committee was formed by Parsky and the senators, not by any federal agency or by the president.
Nor is the committee “utilized” by the president within the meaning of the act, Thompson concluded, citing a 1989 U.S. Supreme Court decision unanimously rejecting a FACA challenge to the confidential role of the American Bar Association’s Standing Committee on the Federal Judiciary Committee in reviewing judicial nominees.
FACA, the high court said, did not “cover every formal and informal consultation between the President or an Executive agency and a group rendering advice.”
The FJQC, Thompson wrote yesterday, “is a less likely candidate for advisory committee status” since “the advice and recommendations it provided were, according to the complaint, not solicited by the president,” whereas the ABA committee’s views were affirmatively solicited by the Justice Department.
A contrary ruling, Thompson went on to say, would be of questionable constitutionality since it would impinge upon powers granted exclusively to the president by Article II.
Manshardt represented himself on appeal. The defendants were represented by Joseph S. Klapach of Los Angeles and Grant R. Vinik of Washington, D.C.
The case is Manshardt v. Federal Judicial Qualifications Committee, 03-55683.
Copyright 2005, Metropolitan News Company