The secret court that determines the boundaries (such as they are) for NSA surveillance has gotten progressively less secret over the past few months, thanks to Edward Snowden. New data about the historic composition of the court seems to suggest that more of its judges now have prosecutorial backgrounds and were Republican appointees. Put your partisanship down. Existing data and leaked rulings suggest the difference this made was at best subtle.
That new data appeared in a front-page article in The New York Times on Friday. It addresses the role played by Supreme Court Chief Justice John Roberts in making appointments to the court, which is formally known as the Foreign Intelligence Surveillance Act (or FISA) Court. The name stems from the law that gives it its authority, the Foreign Intelligence Surveillance Act, signed into law in 1978. The court came into being the next year, with appointees determined by then-Chief Justice Warren Burger.
While Roberts' role in appointing judges to sit on the FISA Court has been documented before — most notably by the Washington Post earlier this month — it had not previously been possible to compare Roberts' appointees with his predecessors. The Times got a full list of appointees over time, most of whom come from district appeals courts. The paper's Charlie Savage summarizes:
Though the two previous chief justices, Warren E. Burger and William H. Rehnquist, were conservatives like Chief Justice Roberts, their assignments to the surveillance court were more ideologically diverse, according to an analysis by The New York Times of a list of every judge who has served on the court since it was established in 1978.
According to the analysis, 66 percent of their selections were Republican appointees, and 39 percent once worked for the executive branch.
Our own version of The Times' graph of those appointees is below. Each Chief Justice who has appointed FISA Court judges is below. The timing is important, so it's worth breaking out:
- Warren Burger: began appointing judges in 1979
- William Rehnquist: began in 1986
- John Roberts: began in 2005
As is hopefully obvious, the distinction between Roberts and his predecessors is subtle. He has appointed a higher percentage of judges who have experience in the executive branch (mostly as prosecutors) and who were themselves appointed to the bench by other Republicans. This, Savage argues, is important.
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.
The "academic study" linked is to a 2004 report that broadly suggests George W. Bush appointees to all benches were more conservative than the norm. The FISA Court is not mentioned.