Judge James Boasberg of the U.S. District Court for the District of Columbia
Judge James Boasberg of the U.S. District Court for the District of Columbia (Photo: Diego M. Radzinschi / NLJ)

Chief Justice John Roberts Jr. has named two federal judges—both appointed by Democrat presidents—to sit on secret courts in Washington that review government surveillance applications.

Roberts designated U.S. District Judge James Boasberg, appointed by President Obama to the U.S. District Court for the District of Columbia, to serve on the Foreign Intelligence Surveillance Court for a term that starts in May.

Boasberg would take the place of U.S. District Judge Reggie Walton, a George W. Bush appointee who serves on the Washington federal trial bench.

Roberts also designated Judge Richard Tallman, a Clinton nominee who sits on the U.S. Court of Appeals for the Ninth Circuit, as a judge of the United States Foreign Intelligence Surveillance Court of Review. All three of the FISA Court of Review judges were appointed to the federal bench by Democrats.

Roberts last year, in the national debate over government surveillance programs, drew criticism for the 11-1 imbalance—Republican-appointed judges versus Democrats—on the FISA court.

In July, Rep. Adam Schiff (D-Calif.), a senior member of the House Intelligence Committee, introduced legislation that would require Senate confirmation for the 11 judges who sit on the surveillance court. Under the current scheme, the chief justice designates judges to the surveillance court to seven-year terms.

“As a result of the current selection process, ten of the 11 judges currently serving on the FISC were appointed to the federal bench by presidents from one political party,” Schiff said at the time. “In light of the significance of the FISA Court opinions, their classified nature and their virtual unreviewability, the American people—through the Senate—should have the opportunity to probe nominees on their Fourth Amendment views and other key matters.”

An Obama administration group that reviewed government surveillance programs said in a December report that the chief justice should no longer have sole authority to select judges for the FISA court. The panel recommended that other Supreme Court justices play a role in the designation of judges to the surveillance court.

Last month, Obama announced reforms to the nation’s surveillance programs that focused on changes to the role of the FISA court. NSA analysts must seek approval from surveillance court judges before making any query of the phone call database.

Obama also called on Congress to establish a panel of advocates from outside the government to provide an independent voice in significant cases before the Foreign Intelligence Surveillance Court, such as novel issues of law and large questions of privacy.

Contact Todd Ruger at truger@alm.com.