Among other things, FISA established the Foreign Intelligence Surveillance Court (FISC), which reviews government applications to conduct electronic surveillance for foreign intelligence purposes. Members of Congress have introduced various proposals that would amend FISA or amend the practices and procedures of the FISC. This report focuses on the proposals that would alter the process for selecting judges to serve on the FISA courts. Overview of FISA Courts and Selection of FISA Judges

Article III of the U.S. Constitution vests the "judicial power" of the United States in the Supreme Court and any inferior courts established by Congress. FISA also established the FISA Court of Review, which has jurisdiction to review the denial of any application by the FISC. FISA authorizes the Chief Justice of the U.S. Supreme Court to "designate" the federal judges to serve on the FISC and FISA Court of Review. With these criticisms in mind, several bills have been introduced in the 113 th Congress to alter the process for selecting FISA judges. This report first briefly reviews the constitutional method for appointing Article III judges. It then 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 assess the constitutionality of some of these proposals that shift designation authority away from the Chief Justice alone and vest it in other officials within the judicial, executive, and legislative branches. The first set of judges to this court was appointed by the President with the advice and consent of the Senate, and subsequent judges were "designated" by the Chief Justice from among the judges of the circuit courts. The FISA Judge Selection Reform Act ( S. 1460 ), for example, would maintain designation authority within the judicial branch, but it would disperse the selection process for the FISC between the 13 chief judges of the circuit courts and the Chief Justice. Other proposals would shift authority to designate FISA court judges to the President. For example, the Presidential Appointment of FISA Court Judges Act ( H.R. The FISA Court Accountability Act ( H.R.
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.
Under the existing framework, the Chief Justice of the U.S. Supreme Court "designates" existing federal judges to serve on the FISA courts. While critics have argued that the current process is partisan and lacks political accountability, transparency, and oversight, the Director of the Administrative Office of the U.S. Courts, acting on behalf of the Chief Justice of the Supreme Court, has expressed concern regarding proposals that would change the existing framework. Proposals that would alter the process for selecting FISA judges include S. 1460, the FISA Judge Selection Reform Act, which would effectively shift authority to the chief judges of the circuit courts; H.R. 2761, the Presidential Appointment of FISA Court Judges Act, which would authorize the President to choose FISA judges with the advice and consent of the Senate; and H.R. 2586, the FISA Court Accountability Act, which would permit Members of Congress to select FISA judges.
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.