WASHINGTON — Chief Justice John
Roberts, who has filled a secret court that oversees surveillance almost entirely with Republican-appointed judges, has named Judge José
Cabranes, a Democratic appointee, to the panel that hears rare appeals of the surveillance court’s rulings.
Although Cabranes was appointed to U.S. Court of Appeals for the 2nd Circuit by President Clinton, he is considered among the more conservative-leaning Democratic appointees on crime and security issues. In 2005, some supporters — including Michael Mukasey, who later became President George W. Bush’s attorney general — floated his name as a potential Supreme Court nominee.
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“Of the Democratic appointees, he is more of a centrist than most,” said Daniel Richman, a Columbia professor who specializes in criminal law.
Roberts appointed Cabranes, a member of the appeals court in New York, on Aug. 9, a court spokesman said, although it was not announced until Monday. His term expires in May 2020.
His appointment was announced as some lawmakers were working to change the Foreign Intelligence Surveillance Act, or FISA, which gives chief justices unilateral power to assign federal judges to the 11-member Foreign Intelligence Surveillance Court and its three-member review panel, to provide greater ideological balance.
The court hears arguments on surveillance matters from the Justice Department, with no opposing lawyers to offer contrary views or file appeals.
Roberts, more than his predecessors, has tended to assign judges who were appointed by a Republican, as he was, or executive-branch veterans like former prosecutors. Of the 14 judges on the FISA court or its review panel, two were Democratic appointees, and both are considered to be centrists or conservative-leaning.
One was the favored choice of a Republican senator for a judgeship during a fight over nominations in Pennsylvania. The other was a career Justice Department official in the Reagan and first Bush administrations who urged the Supreme Court to overturn the 1973 Roe v. Wade abortion decision and to broaden exceptions to the Fourth Amendment warrant requirement.
Philip Heymann, a Harvard law professor and a deputy attorney general in the Clinton administration, criticized Roberts for not doing more to restore public trust in the FISA court process, which he said was crucial if secret intelligence operations are to have credibility.
Heymann declined to comment specifically on Cabranes, citing personal ties. But as a broader matter, he said, the best choices for “a court that is not trusted in general and that has an overwhelming conservative bias” would be liberals who are outspoken on privacy issues.
“The chief justice may not know it,” he said, “but his responsibility is to start to build up legitimate institutions in the area of intelligence gathering, and he can be credibly accused of having gone just the opposite direction over the years.”
Through a spokeswoman, Roberts declined to comment.
Cabranes, who has never served in the executive branch, is not a liberal counterweight to conservatives on privacy rights, legal experts said.
In 2009, he was on a panel that dismissed a Freedom of Information Act lawsuit filed by a group of lawyers seeking to know whether they had been wiretapped under the Bush administration’s warrantless-surveillance program.
While his opinion did not say whether the program was legal, he wrote that there was “no evidence” that the National Security Agency (NSA) was keeping the information secret “for the purpose of concealing activities that violate the Constitution or are otherwise illegal.”
And in 2008, Cabranes was part of a panel that allowed evidence from a warrantless wiretap and physical search of an American citizen abroad, Wadih El-Hage, to be used in his trial related to al-Qaida’s 1998 embassy bombings in Africa.
“While the intrusion on El-Hage’s privacy was great, the need for the government to so intrude was even greater,” Cabranes wrote.
Orin Kerr, a law professor at George Washington University who noted the latter case on Twitter, said that Cabranes was “generally considered a conservative among Democratic nominees, and the 2008 opinion was a strong endorsement of the Bush administration’s view.”
The only Democratic appointee on the main FISA court, Judge Mary McLaughlin of the Eastern District of Pennsylvania, was appointed by Clinton in 2000. Her candidacy was pushed by Sen. Arlen Specter of Pennsylvania, then a Republican, said Lisa Graves, who worked on judicial nominations in the Clinton administration.
Senators had the power to block hearings for nominees from their states. Pennsylvania’s two Republican senators at the time — Specter, who later switched parties, and Rick Santorum — cut a deal with the White House to allow nominations to go forward in return for getting to pick some. McLaughlin, who had served as a special counsel to Specter, was his choice, Graves said.
“She was well regarded, but was obviously someone who had worked closely with a Republican senator,” Graves said.
Still, Eleanor Acheson, who worked on judicial nominations for the Clinton White House, said McLaughlin was respected by practicing lawyers in Philadelphia and had already been on the administration’s radar as a potential nominee.
On the FISA review panel, Cabranes is joining another Democratic appointee, Judge William Bryson of the U.S. Court of Appeals for the Federal Circuit. Before his appointment by Clinton in 1994, Bryson spent 16 years as a Justice Department official and worked as a deputy to the first President Bush’s solicitor general, Kenneth Starr, along with Roberts.
Bryson had been a clerk for Justice Thurgood Marshall, a liberal, in 1974-75. Bryson won respect in the Clinton administration, Acheson said, and his nomination was “completely defined by the merits.”
Still, he thrived in the Reagan-Bush Justice Department, for whom he signed a Supreme Court brief calling for Roe v. Wade to be overturned.
Bryson also signed a brief arguing for a broad interpretation of subpoenas seeking business records that might be “relevant” to an investigation, foreshadowing a legal dispute in the NSA program that is keeping logs of all domestic calls.
And he signed briefs in cases seeking to solidify exceptions to the warrant requirement in searches and seizures, including the authorities’ stopping a bus and asking to search luggage, conducting random traffic-sobriety checkpoints and searching a house guest.