John Roberts has a way of inserting himself into almost every political setting. He upstaged Barack Obama at his first inauguration; he made his the most important single vote cast in the 2012 election; he has upended 2014 politics with his opinion gutting the Voting Act. Now it turns out he has assumed a key role in the war on terror.
So it seems entirely reasonable for The New York Times‘s Linda Greenhouse to suggest that “we have given the chief justice — any chief justice, not just this one — too much to do.”
The question is being raised now because recent leaks give us a disturbing look into the secretive Foreign Intelligence Surveillance Court. The chief justice selects the 11 district judges who serve on this court; his discretion is subject only to a few limits: the judges must come from at least seven appeals-court circuits, one must be a district judge of the District of Columbia, and no fewer than three must live within 20 miles of D.C.
The FISA panel was originally conceived as simply a mechanism to grant warrants for surveillance — the equivalent of a magistrate who looks at an affidavit from a police officer and then orders a search or seizure. It’s an important function, but pretty pedestrian (or as lawyers like to say, “ministerial”).
Since 2007 or so, though, the FISA Court has bulked up like A-Rod. The New York Times revealed that it has developed a complex case law interpreting the Surveillance Act, the Fourth Amendment, and its own jurisdiction. That case law — like the orders the Court issues, like the briefs the government files, and like the legal opinions from which those briefs flow — are, of course, secret.
An entire shadow Constitution may be growing up, parsed by a court appointed by John Roberts. That secret growth seems more alarming because of reports that the chief justice’s picks for the secret court have been skewed toward the Republican side of the bench.
The chief appoints the members of many specialized judicial panels. But the FISA Court has morphed into a very powerful institution. Perhaps it’s time to change the way it is constituted.
Professor Stephen Vladeck, a separation-of-powers specialist who teaches at American University School of Law, argues that when FISA was passed it made sense to give the power of appointment to the chief justice — but that “what the FISA Court does has changed over time.” The degree of programmatic responsibility it has taken on, he says, may be unprecedented.
For that reason, it may make sense to spread the responsibility for the makeup of the FISA courts. Vladeck suggests either creating a stand-alone specialized FISA Court, appointed by the president and confirmed by the Senate, or confining the present FISA Court to warrant approval, with a transfer of the more complex oversight of surveillance programs to panels of an existing court, perhaps one such as the D.C. Circuit Court of Appeals, which has experience in the intricacies of administrative law.
Should the chief keep the appointment power? Perhaps we can learn from recent history. In 1983, Chief Justice Warren Burger lobbied Congress to create a new national Court of Appeals, made up of already-confirmed sitting judges. In different proposals, the power of appointment would either be held by the chief alone, or by the Supreme Court as a whole.
Officials at the Reagan White House had little use for the idea. Appointment by the chief justice, or by the Court as a whole, one wrote, “constitutes an unprecedented infringement on the president’s appointment power.” Appointment by the chief alone would be likely to produce a solidly conservative court, but “liberal members of Congress, the courts, and the bar are likely to object.” Even worse, if Democratic nominees were named, they might reverse the judgments of Reagan appointees on the lower courts.
“[T]he new court would be qualitatively different” than specialized panels appointed by the chief justice, this Reagan official wrote, “and its members would have significantly great powers than regular circuit judges.” If the project went forward, “we should scrupulously guard the president’s appointment powers.”
It was a shrewd assessment. The power to name judges to any important court is a major one, one that involves the president’s power, the appearance of integrity and impartiality on the nation’s courts, and the crucial issue of which judges get the last word on important questions.
The author of those memos was 28 years old when he opposed the new court. Today he is the chief justice of the United States.
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Before we get to the specifics of this exposé about escorts working the Iowa and New Hampshire primary crowds, let’s get three things out of the way: 1.) It’s from Cosmopolitan; 2.) most of the women quoted use fake (if colorful) names; and 3.) again, it’s from Cosmopolitan. That said, here’s what we learned:
- Business was booming: one escort who says she typically gets two inquiries a weekend got 15 requests in the pre-primary weekend.
- Their primary season clientele is a bit older than normal—”40s through mid-60s, compared with mostly twentysomething regulars” and “they’ve clearly done this before.”
- They seemed more nervous than other clients, because “the stakes are higher when you’re working for a possible future president” but “all practiced impeccable manners.”
- One escort “typically enjoy[s] the company of Democrats more, just because I feel like our views line up a lot more.”
No matter where you stand on mandating companies to include a backdoor in encryption technologies, it doesn’t make sense to allow that decision to be made on a state level. “The problem with state-level legislation of this nature is that it manages to be both wildly impractical and entirely unenforceable,” writes Brian Barrett at Wired. There is a solution to this problem. “California Congressman Ted Lieu has introduced the ‘Ensuring National Constitutional Rights for Your Private Telecommunications Act of 2016,’ which we’ll call ENCRYPT. It’s a short, straightforward bill with a simple aim: to preempt states from attempting to implement their own anti-encryption policies at a state level.”
Much has been made of David Brooks’s recent New York Times column, in which confesses to missing already the civility and humanity of Barack Obama, compared to who might take his place. In NewYorker.com, Jeffrey Frank reminds us how critical such attributes are to foreign policy. “It’s hard to imagine Kennedy so casually referring to the leader of Russia as a gangster or a thug. For that matter, it’s hard to imagine any president comparing the Russian leader to Hitler [as] Hillary Clinton did at a private fund-raiser. … Kennedy, who always worried that miscalculation could lead to war, paid close attention to the language of diplomacy.”
The New Covenant. The Third Way. The Democratic Leadership Council style. Call it what you will, but whatever centrist triangulation Bill Clinton embraced in 1992, Hillary Clinton wants no part of it in 2016. Writing for Bloomberg, Sasha Issenberg and Margaret Talev explore how Hillary’s campaign has “diverged pointedly” from what made Bill so successful: “For Hillary to survive, Clintonism had to die.” Bill’s positions in 1992—from capital punishment to free trade—“represented a carefully calibrated diversion from the liberal orthodoxy of the previous decade.” But in New Hampshire, Hillary “worked to juggle nostalgia for past Clinton primary campaigns in the state with the fact that the Bill of 1992 or the Hillary of 2008 would likely be a marginal figure within today’s Democratic politics.”
At first, “it was pleasant” to see Trevor Noah “smiling away and deeply dimpling in the Stewart seat, the seat that had lately grown gray hairs,” writes The Atlantic‘s James Parker in assessing the new host of the once-indispensable Daily Show. But where Jon Stewart was a heavyweight, Noah is “a very able lightweight, [who] needs time too. But he won’t get any. As a culture, we’re not about to nurture this talent, to give it room to grow. Our patience was exhausted long ago, by some other guy. We’re going to pass judgment and move on. There’s a reason Simon Cowell is so rich. Impress us today or get thee hence. So it comes to this: It’s now or never, Trevor.”