A Challenge to the Chief Justice’s Sole Appointment Power of Judges to the FISA Court

July 26th, 2013

This is totally off the wall, but hear me out. The appointment clause provides that Congress may vest the appointment power in the “Courts of Law.”

[The President] shall nominate, and, by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

As it stands now, the Chief Justice alone exercises this power. Among his duties, he unilaterally appoints judges to the Foreign Intelligence Surveillance Court. But what if these appointments were invalid?

James Pfander has argued that these decisions are not for the Chief alone to make, but instead are for the entire Court–all 9 Justices–to decide. Let’s say this argument is correct, as a matter of original meaning. I have no idea if it is, but hey, courts have been willing to revisit longstanding precedents based on original meaning regarding the appointment clause (Canning). So why not?

If that’s the case, can anything be done to challenge the Chief Justice’s unilateral appointment of judges to the FISA court? Would anyone have standing, to assert that these FISA judges are being appointed inconsistently with the appointment clause? Since these aren’t technically Article III judge appointments (the positions are for a set term), they could be viewed as some kind of magistrate judge (which are routinely appointed by other judges). Though, in light of their work, this is not a good analogy. And that still would not get around the pesky issue that the Chief appoints them solo.

Charlie Savage reports on how Roberts has almost exclusively picked conservative judges with history in the executive branch, and notes that there proposals to modify the appointment process:

Mr. Blumenthal, for example, has proposed that each of the chief judges of the 12 major appeals courts select a district judge for the surveillance court; the chief justice would still pick the review panel that hears rare appeals of the court’s decisions, but six other Supreme Court justices would have to sign off. Another bill, introduced by Representative Adam B. Schiff of California, would give the president the power to nominate judges for the court, subject to Senate approval.

Would any of these fit in with the appointment clause? Can Congress delegate the power to appoint judges to Chief Judges of the Circuits? Those courts were not created yet at the time of the Constitution, so there is a colorable argument that they do not fit in with the “courts” language. I’m not sure how requiring 6 justices to agree would sidestep any of these problems, unless you call that a majority of the “Courts” of law, which would work. Asking the President to appoint the FISA judges would be just fine. Boy would those confirmation hearings be fun.

Interesting thought experiment over. Back to your regularly schedule blogging.

Update: James Pfander makes his point here.

There may be a simple solution to the perceived problem of bias in the appointment of judges to the Foreign Intelligence Surveillance Courts (or FISA courts): shift the appointment power away from the Chief Justice and give it back to the Supreme Court.

Such a move would address the concern that the Chief Justice, John G. Roberts, has appointed mostly Republican judges to that court, as reported in the New York Times on Friday. The shift may well be required by the Constitution, which provides for Congress to vest the power to appoint inferior officers in the “courts of law” but does not authorize the assignment of any appointment power to the Chief. Or so I argue, anyway, in a recentpaper, “The Chief Justice, the Appointment of Inferior Officers, and the ‘Court of Law’ Requirement,” 107 Nw. U. L. Rev. 1125 (2013).