By Menno Goedman*
In an August 9 press conference, President Obama addressed growing public concern triggered by recent revelations regarding the scope of the government’s intelligence operations. Significantly, the President indicated support for certain reforms that would both reshape how the Foreign Intelligence Surveillance Court functions and limit how the government interprets certain Patriot Act provisions that relate to the collection of business records. These reforms come at a time when the Court faces unprecedented scrutiny. One aspect of the FISC that has captured the public’s imagination is the process by which its members are appointed: the Chief Justice of the Supreme Court unilaterally selects them, with no formal confirmation process and little meaningful involvement by other branches of government. Critics of this “scary secret” and “awesome” power argue that it results in a gross concentration of power, produces a powerful pro-government bias that undermines the Court’s legitimacy, and promotes an undesirable ideological and experiential homogeneity amongst FISC judges.
In light of this recent attention, it is perhaps surprising that the statutory provisions governing the Court’s appointment process were enacted thirty-five years ago. In 1978, Congress adopted the Foreign Intelligence Surveillance Act (FISA), which, amongst other provisions, established the FISC. Section 103 of FISA, codified today in amended form at 50 U.S.C. § 1803, vested the Chief Justice with authority to designate judges to sit on the Court. Pursuant to § 1803, the Chief Justice must designate eleven district court judges, who serve staggered seven-year terms. A minimum of three judges must reside within twenty miles of Washington, D.C., while the members of the court must be drawn from at least seven different judicial districts. Separately, under § 1803(b), the Chief Justice must designate three federal judges to “comprise a court of review” vested with responsibility to review (the very infrequent) instances where an application for electronic surveillance is denied.
For critics of § 1803, two distinct lines of argument undermine the legitimacy of the appointments process. The first challenge is legal in nature. This argument posits that vesting the authority for appointments in the Chief Justice violates Article II, § 2 of the Constitution, which gives only the President, with the advice and consent of the Senate, the power to appoint “officers of the United States.” Therefore, if judges on the Court are “officers,” then § 1803 may run afoul of Art. II. While some scholars have argued that categorizing federal judges as “inferior officers” under Art. II overcomes this constitutional challenge, others remain skeptical.
A second set of critics – a group that includes op-ed boards of major newspapers, academics, and members of congress – challenge § 1803 on prudential grounds. These critics argue that the appointment process both fosters a dangerous concentration of power in the Chief Justice and produces a powerful pro-government bias within the Court. Similar concerns motivated at least three members of Congress to propose legislative reforms to the appointment process. On July 10, Senator Richard Blumenthal proposed a bill to shift the power of appointment away from the Chief Justice and to the Chief Judge of each federal judicial circuit (excluding the Federal Circuit). In the House, Representative Steve Cohen introduced legislation that would divide appointment authority between the Chief Justice, who would appoint three members, and congressional leadership, with the Majority and Minority Leaders of both houses appointing two members each. A separate proposal, suggested by Representative Adam Schiff, would have the Court’s members selected by a process that mirrors executive branch appointments. In that process, the President makes appointments with the advice and consent of the Senate. If nothing else, Rep. Schiff’s proposal appears to render moot the legal challenge discussed above.
These legislative proposals raise interesting questions concerning the objectives of reform. Would these proposals lead to a better functioning court, or would the proposals change the membership of the Court without producing meaningfully different outcomes? There are reasons to be skeptical that the proposed reforms would deliver the intended results. For example, Rep. Cohen’s proposal purports to “guarantee some measure of ideological diversity” on the Court. As one recent appointment suggests, however, a more bipartisan court will not necessarily promote ideological diversity or balance. Moreover, it is doubtful that enlarging the executive branch’s role in the appointment process – as Rep. Schiff proposes to do – would alleviate either the perception or reality of a pro-government bias.
At the beginning of September, it remains unclear whether any of these reform proposals will garner widespread support. Discussion of the § 1803 appointment process was notably absent from President Obama’s press conference. As some have suggested, however, reform of the appointment process may be inevitable. It is therefore worth deciding today what objectives we hope the court can achieve, in order to better inform tomorrow how the appointments process can best be reformed to produce our desired outcome.
*Menno Goedman is a J.D. Candidate at Harvard Law School, 2014. From 2009 – 2011, Menno Goedman was an advisor for legislative affairs at the U.S. Treasury Department.