Constitution Check: Is the Chief Justice’s power to pick judges of the secret wiretap court a bad idea?

Lyle Denniston looks at a growing debate about Supreme Court Chief Justice John Roberts’ power to select judges who sit on a top-secret court – a power assigned to him by Congress.

THE STATEMENTS AT ISSUE:

“A secret court comprised of judges picked by one individual is problematic enough when that court rules on individual surveillance applications. But for such a court to be developing an entire body of law, impacting millions of Americans, outside of its statutory jurisdiction is even more disconcerting.”

– The Alliance for Justice, a liberal advocacy group, commenting on the new controversy over appointments by Chief Justice John G. Roberts, Jr., to seats on the Foreign Intelligence Surveillance Court. The Alliance’s newly released report, “Justice in the Surveillance State: How the Foreign Intelligence Surveillance Court’s Design Leads to Concentrated Power and Pro-Government Bias,” is available here.

“Article II makes no mention for the assignment of appointment authority to the Chief Justice….So long as the judicial branch offices in question qualify as ‘inferior’ within the meaning of Article II, the Constitution appears to foreclose the vesting of appointment authority in the Chief and to require its vesting in the [Supreme] Court instead.”

– James F. Pfander, Northwestern University law professor, in a faculty paper titled “The Chief or the Court: Article II and the Appointment of Inferior Judicial Officers.” The paper was originally published in 2012, but is now circulating anew in Washington, D.C., amid policy discussions about possible changes to the law governing the Foreign Intelligence Surveillance Court. The full study is available here.

WE CHECKED THE CONSTITUTION, AND…

If one takes a literal view of the Constitution’s few provisions on the appointment of officials to serve in federal government positions, the Chief Justice is nowhere given that authority. Article II splits that power between the three branches of the government, but does not mention a specific role for the Chief Justice as an individual.

That omission is one topic amid a hot new controversy in Washington about whether there needs to be a change – some call it a reform – of the operations of a specialized federal court whose seven members are appointed by the Chief Justice, with no review of those selections anywhere else in the government.

That court is the Foreign Intelligence Surveillance Court, a super-secret tribunal that has existed since 1978 and that has the task of reviewing government requests for electronic eavesdropping to gather foreign intelligence data.

In the wake of National Security Agency leaker Edward Snowden’s public release of one secret order of that court, America now know that the NSA has been given permission by that court to scoop up data about virtually all forms of electronic communication by Americans. With the government’s own recent release of other orders by that court, the sweep of the authorized data-gathering seems even greater.

There is now a fast-developing effort in Congress and elsewhere in Washington to reexamine whether the specialized court has been given too much power, and is using it in a way that escapes any realistic form of public accountability or transparency.

That effort is being driven not only by the Snowden revelations, but also by the growing realization that the FIS Court’s basic grant of power has grown enormously in the wake of the “war on terrorism,” and especially under laws passed by Congress in 2001, 2008 and 2012. In its earlier years, the court only had authority to approve electronic surveillance of individuals about whom the government had some suspicion that they were a threat to U.S. security.

Now, that court’s authority has been expanded to what are called “programmatic” electronic data sweeps, which means it can issue orders permitting the gathering of data from a whole range of communications with no basis of individualized suspicion to limit its scope.

It is generally assumed – but there is no official proof of this, because of that court’s secret operations – that the FIS judges have upheld the constitutionality of data-gathering on such a grand scale, apparently holding that it does not run afoul of the constitutional right of privacy in such provisions as the Fourth Amendment.

Efforts are now being made, in Congress and in a few federal court lawsuits, to bring out into the open the FIS Court’s legal justification for its more recent orders. And there is also a parallel campaign, in and out of Congress, to impose new layers of public accountability on that court. And it is this second effort that has now brought to the fore the question of how judges get named to the FIS Court.

Congress, in creating that tribunal, assigned the task to the Chief Justice alone. Unlike most appointments to significant government offices, these appointments are not subject to Senate confirmation. And, indeed, no one has the authority to review them.

Scholars and policymakers, pondering whether to bring that process out into the open — and also to make it a shared responsibility — are returning to the Constitution. What they find, in Article II, is that the Founders mainly assigned the task of naming important government officials to the President, with “the advice and consent of the Senate.” That shared power, of course, includes the naming of members of the Supreme Court and other unspecified “officers of the United States.”

The “other officers” phrase has long been understood to include other federal judges, not just the Supreme Court Justices. But Article II also gives Congress the power to decide who may choose “inferior officers.” Those can be named, if Congress chooses, by the President, by “the Courts of Law,” of by the “heads of departments.”

If the members of the FIS Court are considered to be “officers of the United States,” by the literal terms of the Constitution, that would mean that the President and the Senate would have to put them on that court. But, can it be argued that they are “inferior officers”? That phrase does not seem to give sufficient recognition to the now-awesome authority that those judges have.

And, if they are “inferior officers,” is the Chief Justice as the head of the judiciary entitled to choose them, with no checks and balances?

If the FIS Court is now essentially serving as a parallel Supreme Court, in deciding what the Fourth Amendment means in the digital age of metadata-gathering, would it be more in keeping with the Founders’ design to put their selection back into the political realm, where accountability might be more realistic?

That is a fundamental question of constitutional policy, and its answer is not likely to be easily found.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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