The G.O.P.’s Surveillance Judiciary

Illustration by Terry Stevenson, Harper’s Magazine, December 1974

In Friday’s New York Times, Charlie Savage takes a closer look at the judges hand-picked by John Roberts for the Foreign Intelligence Surveillance Act (FISA) court.

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.

Not surprisingly, the Times review shows that Roberts has fashioned a court in his own image: movement conservative, Republican, largely consisting of persons who previously worked in the government. In sum, Roberts has picked a court that can be relied upon to quickly approve any government request for surveillance, through whatever instruments and according to whatever rules the government wishes.

The two chief justices who preceded Roberts, William H. Rehnquist and Warren E. Burger, were also conservative Republicans, and like Roberts they also ensured that a majority of the FISA court’s judges were conservative Republicans. However, neither of his predecessors was nearly so obsessive about it as Roberts — two-thirds of their selections were Republicans, while for Roberts, all but one have been Republican.

Equally consequential, to my mind, are the legal backgrounds of the judges selected. As Connecticut senator Richard Blumenthal, a career prosecutor, has explained, “Judges who used to be executive-branch lawyers were more likely to share a ‘get the bad guys’ mindset and defer to the Justice Department if executive-branch officials told them that new surveillance powers were justified.”

The division forming over National Security Agency surveillance is hardly a conventional partisan split. Those who hold or are in the thrall of executive power — the Obama Administration, the Democratic and the G.O.P. congressional leadership — want to safeguard its secrets from the American public. Their interest was laid bare in curious fashion near the end of a recent House hearing on the NSA scandal. Virginia Republican Bob Goodlatte asked the government’s most senior intelligence lawyer, Robert S. Litt, whether he really believed the government could keep such a vast surveillance program a secret forever. “Well,” Litt replied, “we tried.”

Standing in opposition to the NSA’s surveillance overreach is an ad-hoc coalition of civil-liberties Democrats and libertarian Republicans. An amendment they introduced in the House to this end failed last week by a vote of 217 to 205, after last-minute arm-twisting from G.O.P. congressional leaders and senior Obama officials secured the tiny margin of victory. The winning votes may have come from representatives who are opposed to the breadth of the NSA programs but believe the agency should have time to wind them down. Leaders in both camps expect the NSA’s surveillance frolic-and-detour to be curtailed when its current authorization period expires, a point on which senior Republican congressman Jim Sensenbrenner (Ill.), an author of the Patriot Act provisions used to justify the surveillance, has lately been emphatic.

The special judicial body put in place by FISA to check government surveillance activities has been transformed by John Roberts into a cheerleader for such programs. This judicial adulteration leaves NSA critics in Congress with little alternative but to push for laws establishing further limits on NSA activities — though even if they manage to pass such a law, they must be wary of the demonstrated ability of the Justice Department, the NSA, and the FISA court to find secret “understandings” of statutes that justify unforeseen forms of overreach.

The Roberts Court, as we might as well call the FISA body, has stumbled in upholding the ongoing expansion of government surveillance, and is justifiably drawing fire from Congress and the public over its demonstrated failures of judicial detachment and objectivity. But is it possible to simply disband the court? In the end, there is no getting around the need for a judicial check in the surveillance process. It would make far more sense to let the terms of the current judges lapse at the end of this year and require that new members be appointed, with those now serving precluded from another term. And the process by which new members are appointed must ensure that the new court is representative of the federal judiciary as a whole. That might be achieved by any of a number of proposals pending in Congress, but it surely won’t occur if John Roberts is allowed to continue to appoint the FISA court’s members.