An editorial in the New York Times says: There are so many deeply troubling things about the Foreign Intelligence Surveillance Court that it is difficult to know where to begin, but a good place might be the method by which the court’s judges are chosen.
All 11 of the current members were assigned to the court by Chief Justice John Roberts Jr. In the nearly eight years he has been making his selections, Chief Justice Roberts has leaned about as far right as it is possible to go. Ten of those 11 members were appointed to the bench by Republican presidents; the two previous chief justices put Republican-appointed judges on the court 66 percent of the time, as reported by Charlie Savage in The Times.
The FISA court considers government requests for warrants to collect phone and Internet data, among other things, on an enormous scale. The judges hear only the government’s argument. There is no adversary present to represent interests of those whose privacy would be violated — which could well involve millions of Americans. The court’s rulings, some of which include novel interpretations of constitutional law, remain secret.
If the surveillance court is to be considered part of the American justice system, it needs to start looking more like an actual court. For starters, there is no good reason the chief justice should have sole authority to appoint the court’s judges. Already, critics of the current system have floated numerous alternative ways for selecting FISA court judges.
One idea worth considering, offered by Senator Richard Blumenthal, Democrat of Connecticut, is for each of the chief judges of the federal appeals courts to select one judge for the surveillance court.
This approach could minimize the risk of politicizing the process. A further step might be to require the chief judges’ choices to be submitted for approval to a board consisting of members of Congress with experience in intelligence matters and experts with experience in protecting civil liberties.
The professional qualifications of the judges appointed by Chief Justice Roberts are not in question. But given the extent to which the FISA court’s rulings have infiltrated our lives, it is appropriate for the public to have a voice in who sits on it.
The authority of our judiciary derives from its independence and its accountability. At the very least, the power to select the judges who are making secret law should not rest in the hands of one man.