Fair Courts E-lert: New Concerns Surface over FISA Court

July 31, 2013

New Concerns over FISA Court
In light of recent criticisms of the broad powers of the Foreign Intelligence Surveillance (FISA) Court, the New York Times recently completed an analysis of every judge to sit on the court since it was established in 1978. The Times argues that Chief Justice John Roberts has quietly been reshaping the FISA court, choosing “judges with conservative and executive branch backgrounds that critics say make the court more likely to defer to government arguments that domestic spying programs are necessary.” Justice Roberts’ appointments to the FISA court have been far less ideologically diverse than his Republican predecessors’, reports New York Magazine. “Of Warren Burger and William Rehnquist's picks, 66 percent were appointed by Republican presidents and 39 percent had worked for the executive branch. As for Roberts, 86 percent of his selections have been Republican appointees, and 50 percent worked in the executive branch. The 11 judges currently serving on the court were all assigned by Roberts. Ten are Republicans and six have worked for the federal government.”

The scope of the FISA court’s powers has rapidly expanded in recent years, a change that former FISA Judge James Robertson finds troubling. At a public workshop about surveillance programs on July 9th, Robertson noted that when he was first assigned to the court, judges simply approved warrants, they did not develop precedent. But since that time, the court has begun to interpret the law. Judge Robertson said, “That change, in my view, turned the FISA court into something like an administrative agency which makes and approves rules for others to follow…That’s not the bailiwick of judges. Judges don’t make policy.” Timothy Edgar, a civil liberties adviser for intelligence issues in both the Bush and Obama administrations, also has concerns over the scope and composition of the court. He argues, “The court ‘is becoming ever more important in American life as more and more surveillance comes under its review in this era of big data. If the court is seen as skewed or biased, politically or ideologically, it will lose credibility.’”
Sources: Margaret Hartmann, John Roberts Packed ‘Independent’ FISA Court With Republicans, Former Federal Employees, New York Magazine, July 26, 2013; Charlie Savage, Roberts’s Picks Reshaping Secret Surveillance Court, New York Times, July 26, 2013; Charlie Savage, Foreign Intelligence Surveillance Court of Review: Current and Past Members, New York Times, May 2013; Lynne Livingston, Transcript of “Workshop Regarding Surveillance Programs Operated Pursuant to Section 215 of the USA PATRIOT Act and Section 702 of the Foreign Intelligence Surveillance Act,” Privacy and Civil Liberties Oversight Board, July 9, 2013.


Pennsylvania Judges May Be Banned from Holding Paid Positions Outside the Judiciary
Contrary to the practices of most states and the federal courts, Pennsylvania allows its judges to hold paid positions outside of the judiciary. The Pennsylvania Bar Association is now recommending this practice be prohibited as a means of modernizing Pennsylvania’s rules and bringing them more in line with the American Bar Association's Model Code of Judicial Conduct, according to The Morning Call. “Since 1972, the model code has prohibited judges from holding side employment. The proposed changes would take up the model's exact language, barring judges from serving as an officer, director, manager, general partner, adviser or employee of a business, with exceptions for family-owned entities.” Judge Craig Dally has been permitted to hold the position of director at two banks since he joined the bench. "It is important that judges appear fair and impartial, and I don't think anyone has questioned my fairness and impartiality," Judge Dally said during an interview in March. "If it was an issue that I felt was affecting my ability to do my job, then obviously I would address that." Lynn Marks, executive director of Pennsylvanians for Modern Courts, a reform group, supports the recommended changes. "It sends an important message about the impartiality of judges and independence of judges," she said. "It is important that they not be seen as affiliated with businesses, particularly those that might wind up in court."
Source: Riley Yates, Bar Association: Ban judges from corporate boards, The Morning Call, July 22, 2013.


Rumors Fly in Oklahoma over Special Legislative Session
This past spring, the Oklahoma Legislature made several attempts to pass bills changing the state’s judicial selection system. These bills, which would have created a single 20-year term for appellate judges and turned the state’s merit-selection system into a quasi-federal one, with judges nominated by the governor and approved by the Senate, never became law. Now, rumors are circulating that suggest the governor may consider a proposal introducing term limits for judges in an upcoming special session with legislative leaders, according to The Norman Transcript. In response to the rumors, State Senator Patrick Anderson, R-Enid, sent a letter to 266 judges across the state warning them that this special session “is going to be on attacking the judiciary.” Cleveland County’s presiding district judge, Tracy Schumacher, disagrees with term limits and is also worried about the content of the upcoming special session. “There is already a process for the removal of a judge and that is an election,” she notes in the article.  After the release of Senator Anderson’s letter, Governor Mary Fallin’s office issued a statement saying, "The governor is considering calling a special session. However, the topic the special session would address is lawsuit reform. She is not planning to consider judicial reform or any other issue."
Sources: Mick Hinton, Proposal may limit judges’ terms, The Norman Transcript, July 27, 2013; Bill Raftery, Oklahoma Senate approves single 20-year term for appellate judges, ends merit selection in state, allows governor to pick chief justice, Gavel to Gavel, March 14, 2013; Fallin spokesman says no judicial selection talks, Associated Press via The Kansas City Star, July 25, 2013; Kurt Gwartney, Senator Warns Of Judicial Changes In Special Session, KGOU Radio, July 24, 2013.


Justus Loughry Wins Award for Role in Dad’s Campaign
Justus Loughry, the six-year-old son of West Virginia Supreme Court Justice David Loughry, has won a Telly Award for his role in “The Real Justice Loughry,” a television ad that ran during his father’s 2012 campaign. Founded in 1979, the Telly Awards recognize online and television commercials and film productions. “My favorite part was seeing the people you don’t see – like the people who direct it, the audio people, the sound people and the people who filmed it,” Justus said in an interview in the State Journal. According to the article, “In his spare time, Justus likes to prepare for his two future potential careers by building Lego creations and writing his own Supreme Court cases.”
Sources: Andrea Lannom, Justus Loughry wins award for role in commercial, State Journal, July 19, 2013; George Manahan, The Real Justice Loughry (Allen Loughry), October 4, 2012.
* The Brennan Center for Justice represented Allen Loughry last year in the case Loughry v. Tennant et al. and Callaghan v. Tennant et al. concerning West Virginia’s public financing system.