The New York Times reports that the liaison of Chief Justice John Roberts, Judge John Bates, penned a letter to Senate Intelligence Committee chairwoman Dianne Feinstein:
In a letter made public on Tuesday, Judge John D. Bates urged Congress and President Obama to not alter Chief Justice John G. Roberts Jr.’s unilateral power to select which judges will sit on the court, or to create a public advocate with “independent authority to intervene at will” in the court’s cases to provide adversarial views to the Justice Department’s briefs.
Perhaps the most chilling aspect of the letter, beyond the clear desire to keep power in the hands of the chief justice, is the argument that the primary concern should be the ability of the court to function with ease rather than preserve rights and raise constitutional issues. On the idea of a public advocate The Times notes:
Giving such an official freestanding ability to intervene at will, [Bates] wrote, even when the judges are not interested in hearing from him, could be disruptive to their work.
In the letter itself, Bates disclaims support for any particular legislation while laying out the clear policy desires of the judges that have concurred in the issuance of the letter. He further notes that he has not followed traditional protocol in such instances, writing:
Traditionally, the views of the Judiciary on legislative matters are expressed through the Judicial Conference of the United States, for which I serve as secretary. However, because the matters at issue here relate to special expertise and experience of only a small number of judges on two specialized courts, the Conference has not been engaged at this time to deliberate on them. In my capacity as Director of the Administrative Office of the United States Courts, I have responsibility for facilitating the administration and, furthermore, the Chief Justice of the United States has requested that I act as a liaison for the Judiciary on matters concerning the Foreign Intelligence Surveillance Act (FISA). In considering such matters, I benefit from having served as Presiding Judge of the Foreign Intelligence Surveillance Court (FISC).
So what we have here is a judge intervening in the political process reserved to the two elected branches of government. This intervention is done outside the usual process in which the entire judiciary is consulted. Instead, only judges appointed by the Chief Justice (given the nature of appointment to the FISC) are consulted and they issue a statement that seeks to prevent additional oversight of their work, intervention to ensure important constitutional issues are raised, argued and decided, and they seek to preserve the power of the person who appointed them (who, coincidentally enough also appointed the person that authored this letter as his liaison).
In the clear attempt to preserve the power of the Chief Justice, rather than foster a diversity of views, which, ultimately, would serve the Court’s purpose as arbiter and check on governmental power, Bates writes:
It is important that the process of selection for FISC and Court of Review judges remain both expeditious and fully confidential; the Chief Justice is uniquely positioned to select qualified judges for those Courts.
Never mind that confidentiality is a bedrock of the legal profession and therefore it could reasonably be assumed that the Chief Judges of the Courts of Appeal could be trusted to maintain confidentiality if consulted in the appointment of judges to the courts, as one proposal calls for.
During his confirmation process, then-Judge Roberts promised that he would be an umpire – calling the balls and strikes – rather than a player when it came to how he decided cases and exercised the power of the office of Chief Justice of the United States. Instead, he has once again injected himself directly into the policy debate in an attempt to influence, and perhaps even overturn, the elected branches of government. The courts would be well served to remember that this is a political question and political questions are constitutionally delegated to the elected branches of government. The scope of reform is for the Congress and the President to decide, not the courts. It’s first-year Con Law.