By Menno Goedman*<\/p>\n
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In an August 9 press conference<\/a>, President Obama addressed growing public concern triggered by recent revelations regarding the scope of the government\u2019s intelligence operations. Significantly, the President indicated support for certain reforms<\/a> that would both reshape how the Foreign Intelligence Surveillance Court functions and limit how the government interprets certain Patriot Act provisions<\/a> 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\u2019s 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 \u201cscary secret\u201d<\/a> and \u201cawesome\u201d<\/a> power argue that it results in a gross concentration of power<\/a>, produces a powerful pro-government bias<\/a> that undermines the Court\u2019s legitimacy, and promotes an undesirable ideological and experiential homogeneity<\/a> amongst FISC judges.<\/p>\n <\/p>\n In light of this recent attention, it is perhaps surprising that the statutory provisions governing the Court\u2019s 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<\/a>, codified today in amended form<\/a> at 50 U.S.C. \u00a7 1803<\/a>, vested the Chief Justice with authority to designate judges to sit on the Court. Pursuant to \u00a7 1803, the Chief Justice must designate eleven district court judges<\/a>, 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 \u00a7 1803(b), the Chief Justice must designate three federal judges to \u201ccomprise a court of review\u201d vested with responsibility to review (the very infrequent<\/a>) instances where an application for electronic surveillance is denied.<\/p>\n <\/p>\n For critics of \u00a7 1803, two distinct lines of argument undermine the legitimacy of the appointments process. The first challenge<\/a> is legal in nature. This argument posits that vesting the authority for appointments in the Chief Justice violates Article II, \u00a7 2<\/a> of the Constitution, which gives only the President, with the advice and consent of the Senate, the power to appoint \u201cofficers of the United States.\u201d Therefore, if judges on the Court are \u201cofficers,\u201d then \u00a7 1803 may run afoul of Art. II. While some scholars<\/a> have argued that categorizing federal judges as \u201cinferior officers\u201d under Art. II overcomes this constitutional challenge, others<\/a> remain skeptical.<\/p>\n <\/p>\n A second set of critics \u2013 a group that includes op-ed boards of major newspapers<\/a>, academics<\/a>, and members of congress<\/a> \u2013 challenge \u00a7 1803 on prudential grounds. These critics argue<\/a> 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<\/a> to propose legislative reforms to the appointment process. On July 10, Senator Richard Blumenthal<\/a> proposed<\/a> a bill<\/a> 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<\/a> introduced legislation<\/a> 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<\/a>, suggested by Representative Adam Schiff<\/a>, would have the Court\u2019s 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\u2019s proposal appears to render moot the legal challenge discussed above.<\/p>\n <\/p>\n 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\u2019s proposal purports to \u201cguarantee some measure of ideological diversity<\/a>\u201d on the Court. As one recent appointment<\/a> suggests, however, a more bipartisan court will not necessarily promote ideological diversity or balance. Moreover, it is doubtful that enlarging the executive branch\u2019s role in the appointment process<\/a> \u2013 as Rep. Schiff proposes to do \u2013 would alleviate either the perception or reality of a pro-government bias.<\/p>\n <\/p>\n