In making assignments to the court, Chief Justice Roberts, more than his predecessors, has chosen judges with conservative and executive branch backgrounds that critics say make the court more likely to defer to government arguments that domestic spying programs are necessary. http://www.nytimes.com/2013/07/26/us/politics/robertss-picks-reshaping-secret-surveillance-court.html?hp
Ten of the court’s 11 judges — all assigned by Chief Justice Roberts — were appointed to the bench by Republican presidents; six once worked for the federal government. Since the chief justice began making assignments in 2005, 86 percent of his choices have been Republican appointees, and 50 percent have been former executive branch officials.
The court’s complexion has changed at a time when its role has been expanding beyond what Congress envisioned when it established the court as part of the Foreign Intelligence Surveillance Act. The idea then was that judges would review applications for wiretaps to make sure there was sufficient evidence that the F.B.I.’s target was a foreign terrorist or a spy.
But, increasingly in recent years, the court has produced lengthy rulings interpreting the meaning of surveillance laws and constitutional rights based on procedures devised not for complex legal analysis but for up-or-down approvals of secret wiretap applications. The rulings are classified and based on theories submitted by the Justice Department without the participation of any lawyers offering contrary arguments or appealing a ruling if the government wins.
“Viewing this data, people with responsibility for national security ought to be very concerned about the impression and appearance, if not the reality, of bias — for favoring the executive branch in its applications for warrants and other action,” said Senator Richard Blumenthal, a Connecticut Democrat and one of several lawmakers who have sought to change the way the court’s judges are selected.
Mr. Blumenthal, for example, has proposed that each of the chief judges of the 12 major appeals courts select a district judge for the surveillance court; the chief justice would still pick the review panel that hears rare appeals of the court’s decisions, but six other Supreme Court justices would have to sign off. Another bill, introduced by Representative Adam B. Schiff of California, would give the president the power to nominate judges for the court, subject to Senate approval.
Chief Justice Roberts, through a Supreme Court spokeswoman, declined to comment.
The court “is becoming ever more important in American life as more and more surveillance comes under its review in this era of big data,” said Timothy Edgar, a civil liberties adviser for intelligence issues in both the Bush and Obama administrations. “If the court is seen as skewed or biased, politically or ideologically, it will lose credibility.”
“In my experience, there weren’t any opinions,” he said. “You approved a warrant application or you didn’t — period.”
Said Judge James Robertson.
The court’s power has also recently expanded in another way. In 2008, Congress passed the FISA Amendments Act to allow the National Security Agency to keep conducting a form of the Bush administration’s program of surveillance without warrants on domestic soil so long as only foreigners abroad were targeted. It gave the court the power to create rules for the program, like how the government may use Americans’ communications after they are picked up.
While the positions taken by individual judges on the court are classified, academic studies have shown that judges appointed by Republicans since Reagan have been more likely than their colleagues to rule in favor of the government in non-FISA cases over people claiming civil liberties violations. Even more important, according to some critics of the court, is the court’s increasing proportion of judges who have a background in the executive branch.
Stephen Vladeck, an American University law professor, said “The further the court’s authority has expanded from where it was in 1978, the greater the need has been for independent-minded government skeptics on the court,”
Representative Steve Cohen, Democrat of Tennessee, who has filed a bill that would let Congressional leaders pick eight of the court’s members, said “They all seem to have some type of a pretty conservative bent. I don’t think that is what the Congress envisioned when giving the chief justice that authority. Maybe they didn’t think about the ramifications of giving that much power to one person.”