Did you know John Roberts is also chief justice of the NSA’s surveillance state?

[bemildred]

Chief justice of the United States is a pretty big job. You lead the Supreme Court conferences where cases are discussed and voted on. You preside over oral arguments. When in the majority, you decide who writes the opinion. You get a cool robe that you can decorate with awesome gold stripes.

Oh, and one more thing: You have exclusive, unaccountable, lifetime power to shape the surveillance state.

To use its surveillance powers — tapping phones or reading e-mails — the federal government must ask permission of the court set up by the Foreign Intelligence Surveillance Act. A FISA judge can deny the request or force the government to limit the scope of its investigation. It’s the only plausible check in the system. Whether it actually checks government surveillance power or acts as a rubber stamp is up to whichever FISA judge presides that day.

The 11 FISA judges, chosen from throughout the federal bench for seven-year terms, are all appointed by the chief justice. In fact, every FISA judge currently serving was appointed by Roberts, who will continue making such appointments until he retires or dies. FISA judges don’t need confirmation — by Congress or anyone else.

http://www.washingtonpost.com/blogs/wonkblog/wp/2013/07/05/did-you-know-john-roberts-is-also-chief-justice-of-the-nsas-surveillance-state/

[Coyotl]

1. This is why the Bush Junta put him in that position!

[Cronus Protagonist]

6. Ding Ding Ding

He was ushered in for that purpose. Creepy little comb-toothed creep that he is.

[CrispyQ]

2. I did not know this:

To use its surveillance powers — tapping phones or reading e-mails — the federal government must ask permission of the court set up by the Foreign Intelligence Surveillance Act. A FISA judge can deny the request or force the government to limit the scope of its investigation. It’s the only plausible check in the system. Whether it actually checks government surveillance power or acts as a rubber stamp is up to whichever FISA judge presides that day.

The 11 FISA judges, chosen from throughout the federal bench for seven-year terms, are all appointed by the chief justice. In fact, every FISA judge currently serving was appointed by Roberts, who will continue making such appointments until he retires or dies. FISA judges don’t need confirmation — by Congress or anyone else.

Kick, kick, kick!

[MrMickeysMom]

3. KICK!

Absolute power corrupts absolutely...

<a href="http://www.sherv.net/emoticons.html"><img alt="Cussing" width=50 height=50 src=""></a>

[BlueStreak]

7. The real powers are unelected and unaccountable

Last edited Sat Jul 6, 2013, 12:03 AM - Edit history (1)

And that certainly includes the SCOTUS.

There isn't one word in the Constitution that defines how the SCOTUS is to be organized and operate. That is ENTIRELY up to Congress. And therefore Congress can change it at any time.

We should move to a system where:

a) there are 15 Justices, so that no one Justice has too much power

b) Each serves a single term of 15 years and then goes away forever.

c) Causing one seat to be vacant every year. A President could not pack the court in 4 years. If a President wins reelection, that must mean the public is OK with his first 4 nominations, so he would get another 4. With a 15-Justice court, that means any one President could have a majority of his people on the court for only one year. But it also means that even the worst court could be reined in within one Presidency.

d) and to eliminate the Senatorial game-playing, the Senate must take an up-or-down vote within 45 days of the nomination. If the Senate fails to take that vote, the nominee is confirmed automatically. And let's make it a 67-vote super-majority to veto the President's nomination. We can afford to give the President more discretion because it is no longer a lifetime appointment. If a President shoves through a couple of dogs, then the people can hold that against the POTUS at the next election cycle.

[CrispyQ]

8. These sound like great ideas.

Is there a movement or an organization that is working toward this?

[BlueStreak]

12. There are a lot of people talking about it. But remember, the SCOTUS is in charge

They will not give up this power with anything short of an armed coup. They have put themselves in the position to name Presidents and to make or destroy laws at any whim. It is the ultimate power in our "democracy".

[former9thward]

9. Numbers 2, 3, and 4 would require changes to the Constitution.

So Congress could not change it "at any time".

[BlueStreak]

11. ABSOLUTELY NOT TRUE

Last edited Sat Jul 6, 2013, 12:59 AM - Edit history (1)

Here is what the Constitution says. I didn't change one word of it.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

It is ENTIRELY up to Congress. In fact, FDR pushed an expansion of the SCOTUS in order to dial down the power of individual Justices. In the end, the court backed down on crazy shit they were doing and FDR backed down on pushing that change through. But it didn't require a change to the Constitution. Nothing I have suggested requires any change to the Constitution. If you still think I am wrong about that, then please cite the specific language in the Constitution. I'm not interested in what some spineless weenies at some law school say about this. I am only interested in what the Constitution actually says.

Here is a book on that very subject: http://www.amazon.com/Reforming-Court-Limits-Supreme-Justices/dp/1594602131

There are certainly people who argue that a Constitutionals amendment is needed, but they can't cite a single word in the Constitution that would make it so. Their reasoning is simply that , "Well gee, it has always been this way so it would be a lot cleaner if we specifically added term limits to the Constitution."

That is hogwash. The Constitution says that Congress "ordains and establishes" all the Federal courts, including the SCOTUS. That is ALL it says. Period. Full stop. It never says SCOTUS justices will be lifetime appointments. It is completely mute on this. It does say " The judges ... shall hold their offices during good behaviour..." but that doesn't guarantee a lifetime position. If the founders intended it to be a lifetime appointment, they would have said so.

[former9thward]

13. Shouting doesn't help your argument.

It hurts it because you think if you scream people will accept your nonsense. I said 2,3, and 4. I did not say #1. Yes Congress could increase or decrease the size of the court. Those are lifetime appointments whether you like it or not. It would mean the Constitution would have to be changed. It says "good behavior". That means life unless they commit a felony or something to be impeached over. Now stamp your feet and shout some more.

[BlueStreak]

14. SOME people interpret it the way you do

It is by no means the universal interpretation.

Moreover, that linguistic construct need not be a barrier to the Congress fixing the problem. Even if the term of service is subject to debate, there is absolutely no question that Congress has complete authority over the structure and rules of the court. And as such, they can define rules that severely limit a Justices's authority after a given number of years. For example, they can move a justice to a non-voting status after 10 years on the court. It would still be a lifetime position, but the duties would be mostly honorary. I haven't seen any Constitutional expert who argues the Congress does not have that kind of power under Article III, Section 1.

And here is a reform proposal based on that concept:
http://paulcarrington.com/Supreme%20Court%20Renewal%20Act.htm

The essence of that proposal is this structure:

(a) The Supreme Court shall be a Court of nine Justices, one of whom shall be appointed as Chief Justice, and any six of whom shall constitute a quorum.

(b) One Justice or Chief Justice, and only one, shall be appointed during the first session of Congress after each federal election, unless during that Congress one or more appointments are required by Subsection (c). Each appointment shall become effective on August 1 of the year following the election. If an appointment under this Subsection results in the availability of more than nine Justices, the nine who are junior in commission shall sit regularly on the Court. Justices who are not among the nine junior in commission shall serve as Senior Justices to sit on the Court when needed to assure a full bench, participate in the Court's authority to adopt procedural rules, and perform other judicial duties in their respective circuits or as otherwise designated by the Chief Justice.

(c) If a vacancy occurs among the nine sitting Justices because of retirement, death or removal a new Justice or Chief Justice shall be appointed and considered as the Justice required to be appointed during that Congress, if that appointment has not already been made. If more than one such vacancy arises, any additional appointment will be considered as the Justice required to be appointed during the next Congress for which no appointment has yet been made.

(d) If recusal or temporary disability prevents a sitting Justice from participating in a case being heard on the merits, the Chief Justice shall recall Senior Justices in reverse order of seniority to provide a nine-member Court in any such case.

(e) Justices sitting on the Court at the time of this enactment shall be permitted to sit regularly on the Court until their retirement, death, removal or voluntary acceptance of status as a Senior Justice. No appointments shall be made under subsection (b) before the Congress that begins after the last of the current Justices so leaves the Court.

Barring death or resignations, that effectively gives an 18-year term limit (9 "regular" justices, with appointments every 2 years). After 18 years, you become a "Senior" justice and don't normally get a vote on the cases.

I don't really like that proposal, other than the fact that it demonstrates the solution requires no changes to the Constitution. It does have the (unlikely) possibility that there could be, for example, 20 Justices (9 regular and 11 senior). And then if 9 of the senior justices all died in rapid succession, that could bump out the junior ones well before their 18th year on the bench, and all 9 would be named by the same President. And then we'd go another 18 years without a single appointment (unless there were additional deaths or resignations).

That is extraordinarily unlikely, and even in that worse case scenario, it isn't any worse than the situation we have today.

[BlueStreak]

18. Correction to my interpretation of the Carrington proposal

Last edited Sat Jul 6, 2013, 12:36 PM - Edit history (1)

My scenario is incorrect because a replacement only happens if it is one of the non-senior judges that needs to be replaced. When the senior (honorary) judges are gone, there is no replacement. Section C says "If a vacancy occurs among the nine sitting Justices because of retirement, death or removal ..."

I'd still prefer a larger court because it is just too much power for 5 assholes to have. But realistically, I don't think we could ever get through a proposal that did the term limits AND changed the number of justices, so I think this is a wise proposal.

[BlueStreak]

15. My post above addresses b) and c), d) can simply be a matter of Senate Rules

Senate rules are not in the Constitution. The Constitution simply says that the Senate will establish its rules on the first day of each Congress. I see no reason why they could not adopt a rule that says, essentially, failure to bring a SCOTUS nomination to a vote shall have the same affect as consent.

Of if that doesn't pass the test of "advise and consent" then they could simply have rules that eliminate filibusters or other procedural obstructions after 45 days. That is CLEARLY within the scope of Senate rules and would require nothing of the Constitution. The only reason you would need a Constitutional change is if you wanted to lock it in permanently so the Senate couldn't change the rules in the future.

[Tx4obama]

4. The Chief Justice of the Supreme Court is the person that appoints the judges to the FISA Court

The Chief Justice also:

Serves as the head of the federal judiciary.

Serves as the head of the Judicial Conference of the United States, the chief administrative body of the United States federal courts. The Judicial Conference is empowered by the Rules Enabling Act to propose rules, which are then promulgated by the Supreme Court subject to a veto by Congress, to ensure the smooth operation of the federal courts. Major portions of the Federal Rules of Civil Procedure and Federal Rules of Evidence have been adopted by most state legislatures and are considered canonical by American law schools.

Appoints sitting federal judges to the membership of the United States Foreign Intelligence Surveillance Court (FISC), a "secret court" which oversees requests for surveillance warrants by federal police agencies (primarily the F.B.I.) against suspected foreign intelligence agents inside the United States. (see 50 U.S.C. § 1803).

Appoints the members of the Judicial Panel on Multidistrict Litigation, a special tribunal of seven sitting federal judges responsible for selecting the venue for coordinated pretrial proceedings in situations where multiple related federal actions have been filed in different judicial districts.

Serves ex officio as a member of the Board of Regents, and by custom as the Chancellor, of the Smithsonian Institution.

Supervises the acquisition of books for the Law Library of the Library of Congress.

http://en.wikipedia.org/wiki/Chief_Justice_of_the_United_States#Other_duties

A LIST of all the current 11 FISA Court judges

Here: http://en.wikipedia.org/wiki/FISA_Court#Current_membership

[emsimon33]

5. K&R and OMG!!!!!

[BillyRibs]

10. JAY-SUS H CA-REIST!

[blkmusclmachine]

16. We can hear you now.

[Judi Lynn]

17. Oh, jeez. Thank you for enlightening people like me who never learned this, yet. n/t

[treestar]

19. Is that a truly honest assessment of the FISA?

If we are to discuss it, the hyperbole gets in the way.

Composition[edit]

When the court was founded, it was composed of seven federal district judges appointed by the Chief Justice of the United States, each serving a seven-year term, with one judge being appointed each year. In 2001, the USA PATRIOT Act expanded the court from seven to eleven judges, and required that at least three of the Court's judges live within twenty miles (32 km) of the District of Columbia. No judge may be appointed to this court more than once, and no judge may be appointed to both the Court of Review and the FISA court.

So why personalize it to Roberts? There have been and will be other chief justices. And what do you propose as a better way to appoint the FISA court justices?

[bemildred]

20. How should we assess whether it is an honest assessment or not?

What criteria for honesty?

I assume you understand I didn't write this, so I can't really answer your questions, or even offer an opinion, since I don't have one, as to why the writer wrote what he did.

And I assume you are not asserting that Roberts is irrelevant to the issue.

So I'm not sure what you want of me, if anything, but I thought I should respond.

If you just want to assert that Roberts is being "singled out" here somehow, go for it.

[Jefferson23]

21. So frustrating the conservative powers that are now and have been in place, for far too long:

Copyright 2007 by Northwestern University School of Law Printed in U.S.A.
Northwestern University Law Review
Vol. 101, No. 1
239
CHIEF JUSTICE REHNQUIST'S APPOINTMENTS TO THE FISA COURT: AN EMPIRICAL PERSPECTIVE


INTRODUCTION
William H. Rehnquist’s death in the summer of 2005 ended his long
tenure as Chief Justice, and has already spurred a significant quantity of
scholarship assessing his influence on the Supreme Court and the broader
contours of American law.
1
Not surprisingly, this work has focused primarily on Chief Justice Rehnquist’s role within the Supreme Court’s adjudicative function. In that sphere his imprint on the Court’s decisions was crucial but hardly absolute; his views were always tempered by the need to forge majorities, and were occasionally insufficiently forceful to prevent holdings that contradicted them.

This Paper assesses a different part of Chief Justice Rehnquist’s legacy. Among the Chief Justice’s significant statutory and customary
over the federal judiciary is the authority to select, from among hundreds of judges who sit on lower federal courts,the particular jurists who will staff various special tribunals. Situated outside the Court’s collective decision making practice, this power is one much more open to the exercise of the Chief Justice’s individual discretion. One of the courts for which he chose the members is the Foreign Intelligence Surveillance Act Court (“FISA Court”), the body that hears secret government surveillance requests in
connection with national security cases. Chief Justice William Rehnquist made twenty-five such appointments
to the FISA Court from a pool comprised of all sitting federal district judges in the United States.

The FISA Court’s role in mediating privacy rights and national security interests in the war on terror is important and well-known.

Like his jurisprudential influence, Chief Justice Rehnquist’s legacy in this area reverberates beyond his death, as many of the judges he installed on the FISA Court will rule on government surveillance requests for years to come.
3
The FISA Court judges chosen by Rehnquist and his successor John Roberts may become even more influential in the next few years as Congress contemplates expanding the Court’s jurisdiction. This project examines the choices he made using several criteria, and concludes that the Rehnquist FISA judges were a conservative cohort inclined to favor the government on Fourth Amendment issues during their normal judicial work. However,the FISA Court judges he appointed display some diversity in their back ground characteristics, and their overall conservatism was not out of step with the views held by the majority of judges who populated the inferior federal bench during the decades in which he made his selections.

A more hegemonic pattern is suggested by Rehnquist’s less numerous choices for the FISA appellate panel, which hears the rare government appeal from an adverse FISA Court ruling. The six appellate judges Rehnquist tapped for that panel appear to be more uniformly conservative in their judicial philosophy.

in full: https://www.law.upenn.edu/cf/faculty/truger/workingpapers/101NwULRev239%282007%29.pdf