The Chief Justice of the U.S.
Supreme Court unilaterally appoints the 11 judges of the Foreign Intelligence
Surveillance Court who serve seven year terms.
Utah District Court Judge Dee Benson served on the Court from April 2004
to April 2011.
Critics of the
appointment procedure argue that it results in an improper concentration of
power in the Chief Justice, produces a powerful pro-government bias that
undermines the Court’s legitimacy and promotes an undesirable ideological
homogeneity among the judges.
Numerous
legislative proposals to amend the selection process have been filed in
Congress.
Which method for selecting the FISC
judges should be adopted by Congress?
Option 1: Status quo.
Option 2: Judges nominated by President and confirmed
by U.S. Senate.
Option 3: The chief judge of each federal circuit
appoints one judge.
Option 4: Three judges appointed by Chief Justice and
two judges appointed by the Majority and Minority Leaders of both Houses of
Congress, thus totaling 11 judges.
Explain your answer.
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ReplyDeleteI would be in favor of option #2. One of the major critiques with the FISC is the lack of accountability/transparency. This change in the appointment process might help mitigate some of those concerns. Taking the power of appointment to FISC out of the hands of the judicial branch (options 1 and 3) provides some checks and balances and would help ensure more diverse viewpoints on the court. Option 2 utilizes a process that is already in place for nominating/confirming federal judges and it seems as though adding this authority to appoint FISC judges would bring some accountability to the process.
ReplyDeleteI like Laura's position on option number 2. However, I think that Option 3 would provide the diversity of opinion while preventing the political games that are played between congress and the president. Also, when the change is made, all 11 of the appointees will be made by whoever is president at the time, which would likely lead to a partisan court from the very start. Also, with option number 2 there would be more accountability than there is now but the judges will not be overly influenced by either party.
ReplyDeletein the last sentence I meant to say option number 3
ReplyDeleteI'm in favor of option #2. The FISC already lacks the oversight of other federal courts, and it makes decisions that have an impact on a greater number of people than any other mundane criminal or civil matter before a different federal judge. I would be curious to know more about the process and its legality within the context of the non-delegation doctrine. Does the constitution allow congress to delegate its appointment power to a judge? Given the Chief Judge is an unelected official, I am not in favor of so much power centralized with one person. Further, allowing the Chief Judge to appoint other judges without congressional oversight further compounds the transparency concerns that plague the FISC. Although a senate vote would not necessarily increase the transparency of the actual operation of the FISC, a vote would at least give the public a greater opportunity to know more about the jurists that are being appointed to the court. Insofar as congressman might be influenced by their constituents, senate hearings would give the public an opportunity to offer informed approval or dissent. If anything else, transparency in the appointment process might assuage the concerns harbored by privacy advocates.
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ReplyDeleteLike Laura and Mike, I tend to favor Option #2 since it is the proper role of the U.S. Senate to approve Presidential appointments and that process has been the standard for other federal judicial appointments including those to the U.S. Supreme Court and Circuit Courts. Option #2 also sounds like it is faithful to the idea of checks and balances, fundamental to our constitution. However, the “FISC is wholly composed of United States District Court judges, appointed for life by the President with the advice and consent of the Senate, whose salaries cannot be reduced during their tenure. 50 U.S.C. § 1803(a) and (b). As such, with respect to their assignment to FISC for a seven-year term with no additional compensation, FISC judges do not differ from other federal judges who sit from time to time and when the need arises on courts other than that to which they are appointed by temporary designation pursuant to 28 U.S.C. §§ 291–293” United States v. Megahey, 553 F. Supp. 1180, 1197 (E.D.N.Y. 1982) aff'd, 729 F.2d 1444 (2d Cir. 1983) and aff'd sub nom. United States v. Duggan, 743 F.2d 59 (2d Cir. 1984). As such, although my first instincts tend to agree with the critics of the current appointment procedure (Option #1), since it sounds antithetical to that principle, the judges appointed to the FISC by the Chief Justice were themselves appointed by the President and confirmed by the U.S. Senate, so it is less of an issue in practice. Additionally, because FISC appointments, unlike other appointments under Article III, are for a limited term, and not for life, the concerns related to Option #1 are mitigated to a certain extent. However, the U.S. Supreme Court nominations themselves are for life under Article III, whereas the President has term limits. In practical terms, that would mean that the Chief Justice has a longer-lasting and possibly disproportionate effect on the appointment of FISC judges because of the significantly longer tenure he/she holds compared to the President and the U.S. Senate. Option #3 is problematic because of inadequate checks and balances, although if the appointees themselves were previously nominated by the President and approved by the Senate, then such a procedure might work, and possibly mitigate the long-term effects described in Option #1 above. Option #4 would be problematic because the majority and minority leaders in the Senate and the House are only vested with procedural powers related to conducting matters in the respective chambers, whereas all matters brought to vote on the floor are decided by all participating members of the Senate and House respectively. Giving the majority & minority leaders special powers to unilaterally appoint FISC judges without larger Congressional approval would be an unconstitutional expansion of their roles.
ReplyDeleteOption #2 seems very reasonable. Because they are considered parallel somewhat to the Supreme Court in their influence, accountability to the public is essential. This way when someone votes for a President they ask important questions in regards to these FISC judges which will naturally get people more informed. For instance, asking why only 11 denials over the entire 33-year period. This is evidence in my opinion that something needs to change. This confirmation bias is terrifying how little information is needed to garner probable cause for the justification of national security. Option #2 seems to speak to this concern. Special advocates and a review group could also help with these checks and balances. Considering the intense amount of information gathered about a public citizen in regards to their domestic conversations--because the bulk data travels outside the border first-- warrants an election process which would involve the public more and expose how much our actual privacy is being invaded. Option #3 would put way too much power in the Federal Circuit judge as they may end up appointing way more than just one FISC judge and they don't seem as accountable to the public as the President is.
ReplyDeleteI agree with the majority of what was said above. Option #2 is the most appealing to me because there is already inertia for using that system. I'm not sure that "non-delegation" is an issue because, as Vik pointed out, the FISA Court judges are already district court judges. So their status as such has already been determined by proper Constitutional procedures. In that way, we could think of the FISA Court as more of a "committee" on which the district court judges are appointed to serve. So my problem with the current system is not a Constitutional concern, but rather that it concentrates too much power in the hands of one person. Democracy is founded on the principle that "majority rules."
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