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An issue of politics in review of wiretaps

BY TOM BRUNE | Newsday Washington Bureau

July 26, 2006

WASHINGTON - A legislative proposal to test the constitutionality of President George W. Bush's controversial warrantless wiretapping program would turn over that significant judicial decision to a secret court packed with Republican appointees, federal records show.

Under the draft bill, the result of a deal struck recently between Sen. Arlen Specter (R-Pa.) and the White House, Bush would submit his surveillance programs for a constitutional review to a special court created by the Foreign Intelligence Surveillance Act of 1978.

The bill also would transfer all lawsuits filed in U.S. courts across the country by the ACLU and others challenging the program's constitutionality to the FISA Court of Review, created by the 1978 law for appeals of FISA court rulings.

Yet records show eight of the 11 sitting judges who serve as members of the FISA court were appointed to the federal bench by Bush or by his Republican predecessors George H.W. Bush and Ronald Reagan. Records also show all three circuit judges who serve on the FISA Court of Review were appointed by Reagan.

"That's quite good news for the president," said University of Chicago constitutional expert Cass Sunstein, co-author of the book "Are Judges Political?," which finds that judge's rulings tend to follow party affiliation. "There's no doubt that Republican appointees would be more likely to uphold the program than Democratic appointees."

No one can be sure how the FISA court members would rule should Specter's bill become law, experts say. Sunstein guesses they might even rule against Bush.

The Supreme Court could ultimately decide the issue.

But the imbalance in party affiliation raises at least a question of appearances, especially for a White House that has made a priority of nominating conservative judges to shift the federal courts to the right.

Administration critics said the fact that most FISA judges are Republicans added a new concern about Specter's bill. "It's one among many factors that make the proposal very troubling," said Elliot Mincberg of the liberal advocacy group People for the American Way.

Aides to Bush and Specter downplayed questions about the FISA court membership. Specter spokeswoman Courtney Boone said the judges "would be expected to make their decisions based upon the rule of law, not ideology."

Specter is to chair a Senate Judiciary Committee hearing on his legislation today, and his aides say he hopes to move the bill out of committee and to the Senate floor by September.

In an op-ed article this week, Specter argued the FISA court is best suited to rule on Bush's program because it "has the expertise" and "its closed proceedings and unblemished record for not leaking" make "full consideration both possible and secure."

The bill was drafted in response to concerns that Bush overreached his authority when he authorized the National Security Agency to intercept calls and e-mails from here to abroad in pursuit of terrorists without first going to the FISA court.

Under the FISA law, the Supreme Court chief justice names sitting federal judges to seven-year terms on the two FISA courts. The late Chief Justice William Rehnquist, a conservative jurist, named most of the FISA court members. Chief Justice John G. Roberts named two this year.

Two FISA court members were appointed judges by Democratic President Bill Clinton, and a third was appointed by President Jimmy Carter.