passing classified surveillance laws based solely on Justice Department arguments, without appeal. Chief Justice John G. Roberts has assigned all of the FISA judges; of his choices, 10 out of 11 were appointed by Republican presidents. Critics contend that Republicans, as well as former federal employees, are likely to be sympathetic to increased government domestic surveillance:
Ten of the court’s 11 judges — all assigned by Chief Justice Roberts — were appointed to the bench by Republican presidents; six once worked for the federal government. Since the chief justice began making assignments in 2005, 86 percent of his choices have been Republican appointees, and 50 percent have been former executive branch officials.
...While the positions taken by individual judges on the court are classified, academic studies have shown that judges appointed by Republicans since Reagan have been more likely than their colleagues to rule in favor of the government in non-FISA cases over people claiming civil liberties violations. Even more important, according to some critics of the court, is the court’s increasing proportion of judges who have a background in the executive branch.
Senator [Richard] Blumenthal [D-CT], citing his own experience as a United States attorney and a state prosecutor, said judges who used to be executive branch lawyers were more likely to share a “get the bad guys” mind-set and defer to the Justice Department if executive branch officials told them that new surveillance powers were justified.
...Representative Steve Cohen, Democrat of Tennessee, who has filed a bill that would let Congressional leaders pick eight of the court’s members, said it was time for the court to have a more diverse membership.
“They all seem to have some type of a pretty conservative bent,” he said. “I don’t think that is what the Congress envisioned when giving the chief justice that authority. Maybe they didn’t think about the ramifications of giving that much power to one person.”