It’s a popular meme on the left, well summed up in this quotation from the website Down With Tyranny: “Chief Justice
The charge is that Roberts, himself a Republican appointee and a conservative, has packed the Foreign Intelligence Surveillance Court with
But is it really that simple?
Most of the indictments of Roberts take their cue from the reporting of Charlie Savage of
Yet there may be less to this indictment than meets the eye. Yes, the Republican tilt of the FISA court membership is striking, and, as a general proposition, Republican-appointed judges tend to be more conservative than Democratic-appointed ones. But for judges, as for politicians such as President
Nor are Republican-appointed judges necessarily pushovers for the government. We now know that the former chief judge of the FISA court -- John D. Bates, a
As for Roberts' supposed propensity for assigning pro-government patsies to the FISA court, Savage noted that 50% of his appointees were former executive branch officials, compared to 39% of the judges named by previous chief justices Warren Burger and Wiliam Rehnquist. Even assuming that past service in the executive branch makes a judge more sympathetic to the government, is the difference between 50% and 39% statistically significant?
Recently, Roberts named Judge Jose Cabranes, who was appointed by President
Not according to the New York Times. The headline on Savage’s Cabranes story was “Newest Spy Court Pick Is a Democrat but Not a Liberal.” The article, fairly, noted that Cabranes had ruled for the government in two prominent cases involving terrorism and civil liberties. But it also included this arguable assertion by Harvard professor and former Democratic
Actually, Roberts shouldn’t be appointing judges to the FISA courts in the first place. Originally a glorified magistrate’s office, the Foreign Intelligence Surveillance Court has taken on much greater significance with the post-
The Los Angeles Times argued in an editorial last month that the law should be changed so that FISA judges would be chosen specifically for that assignment by the president and confirmed by the Senate. That way senators would be able to question nominees about their views about privacy and the 4th Amendment, subjects that wouldn't have gotten adequate attention in their confirmation for their day jobs as ordinary federal judges.
As for the chief justice, he probably would be happy to let someone else pull the strings of the "national security state."