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View Diary: The Review Group on Intelligence sends greetings to the honorable John G. Robert Jr. (6 comments)

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  •  You may be correct, but the question (1+ / 0-)
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    of whether the appointing power for FISA and certain other bodies is proper to put in the hands of the Chief Justice rather than the Court as a whole long predates the current controversy (long as in centuries regarding the fundamental issue of appointment powers). (See the work of Ted Ruger and James Pfander if you're interested in the history and analysis.) I suspect the Committee got academic and judicial input suggesting that if overhaul is going to be undertaken anyway, this would be a good opportunity to clean up that issue. It would not surprise me if the Chief Justice would actually favor a change.

    The same concerns were raised under Rehnquist, who began by appointing Republicans almost exclusively, then diversified his selections. Not much changed. The empirical research on the FISC (also pre-dating the current controversy) indicates there is little or no difference between the FISC judges and the mainstream of the federal judiciary on 4th amendment jurisprudence and other relevant questions. On these issues, the federal judiciary as a whole is pretty conservative, because of how they're selected and acculturated in the first instance. Regardless of party, they tend to be risk averse and more prosecution oriented than defense oriented, characteristics that play into how the FISC approaches its task.

    Diversifying the selection process, either by specifying selection criteria or by spreading the task out among the justices, is a fine idea because it will increase perceived legitimacy, and might introduce some diversity of thought, but no one should think it will make a huge difference as long as the law the FISC applies remains unchanged.

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