Does the Chief Justice Make Partisan Appointments to Special Courts and Panels?

• Author: Maxwell Palmer
• DOI: http://doi.org/10.1111/jels.12100
• Published date: 01 March 2016
• Date: 01 March 2016

Does the Chief Justice Make Partisan

Appointments to Special Courts

and Panels?

Maxwell Palmer*

The Chief Justice of the Supreme Court has the exclusive and independent power to appoint

federal judges to various special courts and panels, including the Foreign Intelligence

Surveillance Court (FISC), the court that oversees all domestic surveillance for national

security, including domestic data collection by the National Security Agency (NSA). This article

examines the propensity of Chief Justices to appoint co-partisan judges to these panels. Such

appointments may serve to produce decisions and policies that align with the Chief Justice’s

preferences. I use computational simulations to model the appointment decisions made by

Chief Justices. I find that there is less than a 1 percent chance that a neutral ChiefJustice would

appoint as many Republicans to the FISC as have been appointed in the last 36 years. I further

show that the Chief Justice is not selecting appointees on other observable judicial

characteristics, such as age, experience, gender, senior status, or caseload. These results have

important implications for the creation of judicial institutions, the internal politics of the

judiciary, legislative delegation, and the powers and oversight of the national security state.

So in fact one Chief Justice of the United States selects the seven men who will sit on this court and he can, in

fact, influence the foreign intelligence operation of this Nation throughout his lifetime, whether the Chief Justice

be an Abe Fortas or a Warren Burger. He can appoint people who have his predisposition and we in this Nation

will be encumbered with that predisposition throughout the Chief Justice’s lifetime.

—Representative Allen E. Ertel (D-PA)

1

I. INTRODUCTION

Over the past two years, media revelations of the extent of NSA surveillance and data

collection have led to increased public interest in the structure and privacy safeguards

of the national security programs in the United States. Central to these programs is the

Foreign Intelligence Surveillance Court (FISC), the secretive judicial panel that issues

warrants for domestic wiretaps and reviews the implementation of other surveillance

*Assistant Professor, Department of Political Science, Boston University, 232 Bay State Rd., Boston, MA 02140;

email: mbpalmer@bu.edu.

I thank Steve Ansolabehere, Dino Christenson, Anthony Fowler, Justin Fox, and Loch Johnson for helpful

comments and suggestions.

1

Allen E. Ertel (PA), Conference Report on S. 156, Foreign Intelligence Surveillance Act of 1978, 124 Cong. Rec.

at 36409 (Oct. 12, 1978).

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Volume 13, Issue 1, 153–177, March 2016

programs and methods. Prior to the NSA leaks, the FISC received little media or aca-

demic attention and generally operated in secret , reporting only minim al statisti cs to

Congress and releasing few public decisions. Since the leaks, the FISC has been

criticized on two fronts. First, the FISC has been criticized for approving almost all

the wiretaps and other requests for surveillance that have come before it.

2

Second,

the method by which judges are appointed to the FISC has been criticized.

3

The

judges on the FISC are current federal district court judges who are appointed unilat-

erally to the FISC by the Chief Justice. A large majority of the FISC judges, like the

current Chief Justice and his recent predecessors, are judges appointed by Republican

presidents. These criticisms raise concerns about the ideology of the FISC panel and

its protection of privacy rights given its critical role as the primary check on the

NSA’s domestic surveillance programs. For example, Republican panels may show

more deference to the government in security matters and be less concerned with

protecting the privacy rights of individuals (Ruger 2007). The institutional structure

and composition of the FISC also raises important questions about judicial institu-

tions, the internal politics of the judiciary, Congress’s choice to delegate this appoint-

ment power to the Chief Justice, and the powers and oversight of the national

security state.

Given that the Chief Justice serves for life (assuming “good behavior”), the ability to

unilaterallyappoint judges to special courts andpanels is an important and significant power

(Ruger 2004, 2006). Unlike most executive appointments, including all federal judicial

appointments,the Chief Justice’s appointmentsare not subject to the approval of the Senate

or any other review process. Consequently, the Chief Justice is able to select judges (with

some limited legal constraints) using any criteria he might choose, including, potentially,

politicalparty and ideology. Thus, the appointment power of the ChiefJustice has significant

implications for the fairness and neutrality of the judicial process when these panels are

involved. Furthermore, if the Chief Justice is acting in a partisan manner when making

appointments to these special panels, then we may be concerned with other aspects of judi-

cial administration that Congress has delegated to the Chief Justice, including appointing

the Director of theFederal Judicial Center and the membersof the judicial committees who

set the federal rulesof judicial procedure (Ruger 2006,2007; Resnik 2004).

There is a large literature in U.S. politics on the appointment of federal judges by

the president (e.g., Goldman 1997; Moraski & Shipan 1999; Segal et al. 2000; Binder &

Maltzman 2009), as well as on the behavior of federal judges when deciding cases (e.g.,

Dahl 1957; Epstein et al. 2013; Segal & Spaeth 1993; Bailey & Maltzman 2011). The

2

Erika Eichelberger, FISA Court Has Rejected .03 Percent of All Government Surveillance Requests, Mother Jones

(June 10, 2013). Available at: http://www.motherjones.com/mojo/2013/06/fisa-court-nsa-spying-opinion-reject-

request.

3

Ezra Klein, Did You Kknow John Roberts is Also Chief Justice of the NSA’s Surveillance State? Wash. Post Wonk-

blog (July 5, 2013). Available at: http://www.washingtonpost.com/blogs/wonkblog/wp/2013/ 07/05/did-you-

know-john-roberts-is-also-chief-justice-of-the-nsas-surveillance-state/; Garrett Epps, Chief Justice John Roberts

Appointed Every Judge on the FISA Court, Nat’l J. (Aug. 12, 2013). Available at: http:// www.nationaljournal.

com/nationalsecurity/chief-justice-john-roberts-appointed-every-judge-on-the-fisa-court-20130812.

154 Palmer