[1] The United States Department of Justice regularly seeks advice from the Standing Committee on Federal Judiciary of the American Bar Association (ABA) regarding potential nominees for judgeships.

The ABA Committee's investigations, reports, and votes on potential nominees are kept confidential, although its rating of a particular candidate is made public if they are in fact nominated.

Though Justice Brennan agreed that, literally speaking, the Executive "utilized" the ABA, he wrote that "'Utilize' is a woolly verb, its contours left undefined by the statute itself.

Read unqualifiedly, it would extend FACA's requirements to any group of two or more persons, or at least any formal organization, from which the President or an Executive agency seeks advice.

"[4] Justice Brennan concluded that "Weighing the deliberately inclusive statutory language against other evidence of congressional intent, it seems to us a close question whether FACA should be construed to apply to the ABA Committee, although on the whole we are fairly confident it should not.