Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Let the Supreme Court Handle Appointments to the FISA Courts
James E. Pfander
There may be a simple solution to the perceived problem of bias in the appointment of judges to the Foreign Intelligence Surveillance Courts (or FISA courts): shift the appointment power away from the Chief Justice and give it back to the Supreme Court.
Such a move would address the concern that the Chief Justice, John G. Roberts, has appointed mostly Republican judges to that court, as reported in the New York Times on Friday. The shift may well be required by the Constitution, which provides for Congress to vest the power to appoint inferior officers in the “courts of law” but does not authorize the assignment of any appointment power to the Chief. Or so I argue, anyway, in a recent paper, “The Chief Justice, the Appointment of Inferior Officers, and the ‘Court of Law’ Requirement,” 107 Nw. U. L. Rev. 1125 (2013).
Since the 1920s, Congress has assigned a growing bureaucratic portfolio to the Chief Justice of the United States. The Chief presides over the Judicial Conference of the United States, the top policy-making wing of the federal judiciary, and makes a host of important appointments and designations. For example, the Chief chooses the director of the Administrative Office of the US Courts, the judicial branch’s top administrator, and fills vacancies on the various committees that report to the Conference. Finally, the Chief designates sitting federal judges to serve on such adjudicatory bodies as the Judicial Panel on Multi-District Litigation and the secretive FISA courts whose work has drawn closer scrutiny in recent weeks.
Scholars and journalists have criticized the Chief’s appointment and designation role before. Both Chief Justices Burger and Rehnquist were said to have appointed more Republicans to key posts, such as the special division of the D.C. Circuit that presided over the selection of independent prosecutors. While such criticisms can be overdrawn, assignment of appointive power to a single person will inevitably raise questions about the motivations that inform the selection process. The Chief could allay these concerns by creating a more transparent process in which the Court participates as a Court in the selection and designation of top-ranking judicial branch officials.
The practice of court-based appointment has surprisingly strong support in our constitutional culture, notwithstanding recent practice. The nation’s first Chief Justice, John Jay, followed the lead of the First Congress in implementing a practice of court-based appointment. As he prepared to convene the Supreme Court’s first session (in February 1790), he was flooded with petitions from job seekers. Jay replied that appointments to offices in the judicial branch were not his to make but were the responsibility of the Supreme Court itself. And he arranged to have the first appointments made by order of the court and entered on the public record.
Jay’s actions may have reflected his considered view that the Constitution requires this approach. While the President makes appointments to major offices with the advice and consent of the Senate, the Appointment Clause of Article II allows Congress to vest the appointment of inferior officers in the “courts of law.” It makes no provision, however, for the vesting of appointment power in the chief judge or justice of those courts. While the history of the provision is complex, the framers may have acted in part out of a desire to prevent the distribution of patronage by chief judges.
The Constitution’s judicial article confirms the wisdom of court-based appointments. Article III creates a hierarchical judicial branch: it place one Supreme Court at the top of the judicial heap and designates all other courts and tribunals “inferior” to that Court. The logic of judicial hierarchy suggests that officers working within the judiciary should remain “inferior” to the Court, rather than to the Chief Justice of that court.
Some uncertainty remains about the proper scope of the Court’s role in appointments and designations; much would have to be worked out by the Justices themselves. For example, it may be difficult to separate the power to appoint new officials from the task of designating sitting Article III judges to tackle new chores (something the Chief Justice has done since the nineteenth century). But the transfer of appointment and designation power to the Court could improve the process without overburdening the institution. The Chief could still take the lead in preparing a list of prospective candidates, but the process of deliberation by the Court could lead to a more balanced slate of appointments and designations. Notably, the requirement of court-based appointments applies only to “inferior officers” and does not extend to the thousands of employees within the judicial branch whose appointment could interfere with the Court’s important work. In the end, an oversight role for the Court would conform to the constitutional design and help to dispel lingering doubts about modern forms of judicial patronage.