NSA Panel Recommends Allowing All 9 Justices To Appoint Judges to FISA Court. This would be more constitutional.

December 18th, 2013

Under the current rules, Chief Justice Roberts is responsible for selecting all of the Judges to the Foreign Intelligence Surveillance Court. Senator Feinstein has called for more “ideological diversity” on the secret bench. The President’s five member panel has endorsed a similar goal, but through an interesting mechanism–allow each Justice to appoint judges to FISC.

(d) Selection and Composition of the FISC. Under FISA, the judges on the FISC are selected by the Chief Justice of the United States. In theory, this method of selection has significant advantages. Concentration of the power of appointment in one person can make the process more orderly and organized. But that approach has drawn two legitimate criticisms.

The first involves the potential risks associated with giving a single person, even the Chief Justice, the authority to select all of the members of an important court. The second involves the fact that ten of the eleven current FISC judges, all of whom were appointed by the current Chief Justice, were appointed to the federal bench by Republican presidents. Although the role of a judge is to follow the law and not to make political judgments, Republican-appointed and Democratic-appointed judges sometimes have divergent views, including on issues involving privacy civil liberties, and claims of national security. There is therefore a legitimate reason for concern if, as is now the case, the judges on the FISC turn out to come disproportionately from either Republican or Democratic appointees.

There are several ways to respond to this concern. We recommend allocating the appointment authority to the Circuit Justices. Under this approach, each member of the Supreme Court would have the authority to select one or two members of the FISC from within the Circuit(s) over which she or he has jurisdiction. This approach would have the advantage of dividing appointment authority among the Court’s nine members and reducing the risks associated with concentrating the appointment power in a single person.

This is an interesting proposal. And because the more junior justices usually hold down more than one Circuit, that would give advantages to them.

Not only would this recommendation increase the diversity, but I think it would solidify this function under the Appointments Clause. As I explored in this post, based on an article by James Pfander, it is not clear that the Chief Justice can even exercise the appointment power by himself.

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).

This suggestion by the NSA Panel would seem to resolve any constitutional defects.