Is John Roberts packing the FISA court with government patsies?

Is John Roberts packing the FISA court with government patsies?
Some accuse Chief Justice John G. Roberts Jr. of “packing” the Foreign Intelligence Surveillance Court.
(Stephan Savoia / Associated Press)

It’s a popular meme on the left, well summed up in this quotation from the website Down With Tyranny: “Chief Justice John Roberts does everything he can to see that the FISA court remains a trusty tool of the national security state.”

The charge is that Roberts, himself a Republican appointee and a conservative, has packed the Foreign Intelligence Surveillance Court with Republicans and pro-government types, which is why the secret court is such a rubber stamp.


But is it really that simple?

Most of the indictments of Roberts take their cue from the reporting of Charlie Savage of the New York Times. Last month, Savage noted that 10 of the 11 district court judges currently temporarily assigned to the FISA court by Roberts “were appointed to the bench by Republican presidents; six once worked for the federal government.”


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 Obama and Sen. Dianne Feinstein (D-Calif.), Democratic lineage doesn’t guarantee a pro-civil-liberties stance on electronic surveillance issues.

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 George W. Bush appointee who once served as deputy to Whitewater independent counsel Kenneth Starr -- took the government to task in a blistering 2011 opinion for “repeated inaccurate submissions.” (Maybe the FISA court isn’t a rubber stamp after all.)

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 Bill Clinton to the U.S. 2nd Circuit Court of Appeals, as a member of the three-judge Foreign Intelligence Surveillance Court of Review, which hears rare appeals from orders of the FISA court. Before serving on the 2nd Circuit, Cabranes served on a U.S. district court by appointment of another Democratic president, Jimmy Carter. So does Roberts deserve credit for introducing some diversity to the FISA judiciary?


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 Justice Department official Philip Heymann: “The chief justice may not know it but his responsibility is to start to build up legitimate institutions in the area of intelligence gathering, and he can be credibly accused of having gone just the opposite direction over the years.”

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-9/11 expansion in electronic surveillance. Not only does it rule on individual requests for court orders, it also passes on the constitutionality of broad programs such as the bulk collection of telephone records revealed by Edward Snowden.

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.”



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