Reform of the Foreign Intelligence Surveillance Court (FISC): Selection of Judges [May 7, 2014] [open pdf - 271KB]
"In the past year, the decisions and functions of the courts established under the Foreign Intelligence Surveillance Act (FISA) have received much public attention. FISA established two courts--the Foreign Intelligence Surveillance Court (FISC) and the FISA Court of Review-- which have jurisdiction to review government applications to conduct electronic surveillance for foreign intelligence purposes. Various proposals have been introduced in Congress to amend the law that authorizes such surveillance and to change the internal practices and procedures of the courts. This report focuses on those proposals that would amend the process for selecting the judges who serve on the FISC and FISA Court of Review. […] To understand the potential legal issues implicated by these proposals, this report first briefly reviews the constitutional method for appointing federal judges. The report also surveys the process of 'designation,' an alternative method used by Congress that allows current federal judges to serve temporarily on another federal court without undergoing a separate constitutional appointment. Lastly, the report explores how a reviewing court might evaluate the constitutionality of these proposals that would shift the authority to select FISA judges away from the Chief Justice alone, and vest it in other officials within the judicial, executive, and legislative branches."
CRS Report for Congress, R43534