Maybe Liberal Judges Don’t Want to Work on FISA Court?

August 21st, 2013

Chief Justice Roberts has been roundly criticized for appointing more judges appointed by Republican presidents than judges appointed by Democrat presidents. Even his appointment of Judge Cabranes, viewed largely as a moderate Democrat, has been criticized.

Consider this. Roberts can’t force judges to work on the FISC. In other, non-secret contexts, Judges usually volunteer, or express their willingness to serve on other functions, such as on the FJC, or maybe the budget or technology committees. Article III Judges aren’t conscripted to do stuff they don’t want to do. There are some judges who do a lot, and some who do none.

Do we even know how the pool of Judges from which CJ Roberts selects is created? Does Roberts just call up his friends and say, hey, wanna be a secret judge? Perhaps, there is some way that judges can signal their interest, informally? Perhaps this pool is self-selecting (as shown by the large number of former prosecutors on the panel). For all we know, it’s tough for the Chief to staff the bench. Who wants all that extra, difficult work for no pay, or recognition? It isn’t fun.

Maybe, one of the reason why so few liberal judges are on the FISC is that they reject the entire idea of its legitimacy? One datapoint we have is of the evervocal retired-judge Nancy Gertner, who openly criticized FISC. Let’s assume that other progressive judges are of the similar mind of Gertner. Do you think they would want to work on FISC? Who wants to work on a fake court? Now, not all able to come out and criticize it. A silent form of protest is to not join it. Judges just may not be interested in assuming the role of deciding cases outside the adversarial process.

As one court recently noted in the related context of deciding a case based on classified information that the defense cannot see:

When reviewing a district court’s decision to withhold information under CIPA, this court is placed in a somewhat unfamiliar posture. Rather than neutrally deciding disputes with an open record based on the adversarial process, we must place ourselves in the shoes of defense counsel, the very ones that cannot see the classified record, and act with a view to their interests. Meija, 448 F.3d at 458 (“[T]he defendants and their counsel, who are in the best position to know whether information would be helpful to their defense, are disadvantaged by not being permitted to see the information—and thus to assist the court in its assessment of the information’s helpfulness.”). Acting as if we were in essence standby counsel for the defendants, we must determine what may be “relevant and helpful” to them. This is not a position that we relish, yet it is required by CIPA, as interpreted by Yunis and its progeny. And, after a review of the entire record with respect to the claims concerning classified information by the defendants, we find that there was nothing “relevant and helpful to the defense.”

But that self-selection creates a whole host of problems. The very judges that we should *want* ensuring transparency are not on the bench, and the judges who are okay with this process are the ones on the bench.

Even if some kind of selection panel was created, judges would still have to volunteer, or at least express their interest in participating. Short of reforms in how the court operates, I wonder if the pool of nominees would even grow.