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A federal judge has tossed out a lawsuit aimed at subjecting California’s judicial selection committees to open government rules, a move that would have shined a light on how California’s federal judges are chosen. Lawyers for a failed U.S. attorney candidate in Los Angeles said the advisory committees should be open to the public under the Federal Advisory Committee Act. But U.S. District Judge Florence-Marie Cooper ruled last week that the question presented in the suit was political, not judicial. “Defendants argue that this case presents a nonjusticiable political question and should be dismissed for that reason,” Cooper wrote. “The court agrees.” The plaintiffs didn’t — announcing they would, in all likelihood, appeal the ruling to the Ninth Circuit U.S. Court of Appeals. Cooper deferred to the political question doctrine, first outlined in Marbury v. Madison, 5 U.S. 137, which holds that certain purely political determinations made within the executive branch should be left there. But Gary Kreep, executive director of the U.S. Justice Foundation, said the judge completely ignored their claims under FACA. Though Cooper said the claims were “facially appealing,” she nonetheless turned them aside in short order. “Basically, the judge’s ruling means that the Federal Advisory Committee Act means nothing,” Kreep said. Kreep conceded that if President Bush simply makes a phone call to ask for advice on a nominee, FACA wouldn’t be invoked. But once committees with set memberships and rules are established, Kreep said they are subject to open government laws — even if their goal is the usually clandestine business of picking federal judges. The committees were set up in each of the four federal judicial districts in California to deal with what could have been a particularly nasty problem — the president is Republican, while both the home state’s senators are Democrats. Consequently, the two sides came up with a kind of power-sharing arrangement where nominees would be vetted by bipartisan committees before the names were passed on to Gerald Parsky, one of Bush’s trusted allies in the state. Conservative Republicans in California were angered that the role of picking nominees was not handed down to the state’s senior Republican delegation to the House of Representatives. They argue that the committees have established “litmus tests” to ensure that no conservative judges make it onto California’s federal bench. “We’re very pleased with the result and believe that the court came to the right conclusion,” said Joseph Klapach, an associate at Munger, Tolles & Olson who is representing the four committees. The suit was filed by Patrick Manshardt, who sought the U.S. attorney post in Los Angeles. In addition to judges, the Republican members of the committees also choose U.S. attorneys and U.S. marshals in each of the four California districts. Federal circuit court nominees are still chosen by the White House.

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