Is Chief Justice John Roberts ‘unpacking’ the FISA courts?

It’s an article of faith among some critics of the National Security Agency that Chief Justice John G. Roberts Jr. has packed the Foreign Intelligence Surveillance Court (a.k.a. the FISA court) with Republicans who are patsies for the “national security state.” As chief justice, Roberts gets to decide which sitting U.S. district judges will serve temporary stints on the secret court. He also chooses appeals court judges for the Foreign Intelligence Surveillance Court of Review.

The partisan court-packing theory is questionable, as I pointed out last year. Yes, as of last summer 10 of the 11 district court judges assigned to the FISA court by Roberts had been appointed to the bench by Republican presidents. But Republican-appointed judges don’t robotically rule for the NSA any more than Democratic-appointed ones reflexively rebuff the agency. The granddaddy (grandmommy?) of FISA court opinions favorable to the “security state” was issued by former FISA court Presiding Judge Colleen Kollar-Kotelly, who was appointed to the district court in Washington by Democrat Bill Clinton.

In addition to rulings by the FISA court, NSA programs have been the subject of conflicting decisions by other federal judges. In December, Richard Leon, a district judge in D.C., ruled that the agency’s bulk collection of Americans’ telephone records likely was unconstitutional. Later in the month, a contrary ruling was issued by U.S. District Judge William H. Pauley III in New York. Leon was appointed by Republican George W. Bush. Pauley was named by Clinton.

So much for the idea that Republican-appointed judges are stooges of a sinister national security state while Democratic-appointed judges are stalwart supporters of privacy. But, fallacious as it may be, that idea has gained traction in Congress, and there have been proposals that the chief justice be stripped of the sole power to appoint judges to the FISA tribunals.

Roberts, who is nothing if not politically astute, obviously was aware of the “court-packing” narrative. On Friday, it was reported that he has named new judges for the FISA courts. U.S. District Court Judge James Boasberg of Washington will serve on the Foreign Intelligence Surveillance Court, and U.S. 9th Circuit Court of Appeals Judge Richard Tallman will join the Foreign Intelligence Surveillance Court of Review. Boasberg was appointed by President Obama, Tallman by Clinton (although Tallman has been described as a Republican and was appointed as part of a deal with Republican senators).

These new appointments may or may not sideline proposals to limit the chief justice’s authority over FISA judicial appointments. The Times’ editorial board has supported a more radical reform: have the FISA judges appointed specifically and permanently to the two FISA courts by the president. That way they would have to explain their views about electronic privacy to the Senate before they were confirmed.

My guess is that Roberts would be happy to be relieved of the responsibility.

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