Contributor Post Created with Sketch. Recommended by Ricochet Members Created with Sketch. How Kind: Thinking Well of McConnell and Roberts

 

“…Judges and Justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.

— Nominee for Chief Justice, John Roberts, before the Senate Judiciary Committee, 2005

Inflaming public passions against a party, particularly a criminal defendant, and encouraging prosecutors to vastly increase the charges against him, is the very antithesis of calling balls and strikes.

[. . .]

This is an umpire who has decided to steal public attention from the players and focus it on himself. He wants to pitch, bat, run bases, and play shortstop. In truth, he is way out in left field.

Sidney Powell, Writ of Mandamus, 2020

Conservatives would like to think well of Senate Majority Leader McConnell and Chief Justice John Roberts. That is very kind, very charitable. It may not be at all warranted without very heavy restrictions or qualifications. Take the General Flynn matter as an example.

Sidney Powell’s latest court pleading is a thing of beauty. Do not be deceived by the court to which it is addressed It is squarely aimed at Chief Justice Roberts, not anyone below. It is calling him on his self-serving claim of judicial non-partisanship and pure professionalism. With all the documents coming out, Roberts has strong motivation, before the 2020 election, to be seen policing his own branch of government. Consider Chief Justice Roberts’ last two responses to challenges from the other branches of government. He broke traditional silence to rebuke President Trump in 2018 and Senate Minority Leader Schumer just this March.

In November of 2018, President Trump called out the outrageous partisan conduct of an Obama appointee in the Ninth Circuit. While Roberts sat silent though President Obama publicly attacking the court in the State of the Union, he suddenly felt a need to attack Orange Man Bad. He had the Court’s public information officer issued a statement to the press.

This statement is not available on the Supreme Court website. It was much quoted among the media elite, but not made available directly to the people of the United States. I found a copy of the inside-the-beltway message only because a left-of-center blue check Twitter account captured and posted the image. You can find it on Mark Knoller’s Twitter timeline.

As Marc Thiessen made clear at the time, “Chief Justice Roberts is wrong. We do have Obama judges and Trump judges.

If we do not have Obama judges or Trump judges, then why did Senate Republicans block President Barack Obama’s nomination of Merrick Garland to replace the late Justice Antonin Scalia in the final year of Obama’s term? And why did Democrats filibuster Trump’s nominee, Neil Gorsuch, to fill Scalia’s seat?

Even Roberts’ fellow justices know there is a difference. If there were no Obama judges or Trump judges, then why did Anthony Kennedy wait for Trump’s election to announce his retirement? And why doesn’t Justice Ruth Bader Ginsburg just retire now and let Trump nominate her replacement? Because they both want a president who would appoint a successor who shares their judicial philosophy. (And, lo and behold, Trump picked a former Kennedy clerk, Brett Kavanaugh, to succeed him).

President Trump rebuked Chief Justice Robert‘s rebuke far more bluntly:

Just before the COVID-19 insanity gripped our country, Senator Schumer played to his death cult base, directly threatening members of the Supreme Court by name. Here is the threat, played in context:

This threat, combined with the obvious imbalance if Roberts did not speak up after attacking President Trump for far less inflammatory remarks, prompted the Chief Justice to reply. As with the 2018 statement, this statement is nowhere to be found on the official Supreme Court website. Here, careful searching unearthed the New York Times Supreme Court reporter, Adam Liptak, capturing the unofficial official news release image. It was also available in PDF form on SCOTUSblog, a great but unofficial court blog:

March 4, 2020

Statement from Chief Justice John G. Roberts, Jr.:

This morning, Senator Schumer spoke at a rally in front of the Supreme Court while a case was being argued inside. Senator Schumer referred to two Members of the Court by name and said hewanted to tell them that “You have released the whirlwind, and you will pay the price. You will not know what hit you if you go forward with these awful decisions.” Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.

Now we have the full scope of the greatest political crime in our nation’s history being further revealed weekly. It is no longer an exaggeration to characterize what has been happening as an actual coup attempt by the state intelligence and security apparatus, directed by the outgoing president against the most dangerous opposition candidate, and then the elected president of these United States. As Mollie Hemingway pointed out in the Federalist Memo to McConnell:”

If McConnell and Graham want to confirm judges after November, they need to understand how viscerally outraged many Americans are by the spying and leaking scandal. They need to know that refusal to do anything about it will hurt Republicans, not Democrats, at the ballot box.

They should remember how once they got aggressive in pushing back on the campaign to destroy Brett Kavanaugh’s life and reputation, it redounded to their benefit. Even in an election year where Democrats swept into the House majority, they picked up Senate seats by fighting for Kavanaugh and against the dirty tricks deployed against him and the voters who elected Republicans to the Senate and presidency. Channeling Republican anger in those hearings, at least by the very end, helped them.

They should remember that. They should know that the Republican base is every bit as angry about the Russia hoax as they were about Kavanaugh. And they should know that Americans who care about corrupt government are not seeing nearly enough effort coming from the Senate.

Mollie Hemingway rightly points out the stakes, but perhaps gives McConnell too much an assumption of good faith. I have long held that the dirty little secret is that McConnell has never wanted to fight for a truly conservative Supreme Court. He has spent a career climbing and holding onto power in the Senate. He sabotaged the Alaska Republican nominee for the U.S. Senate when the Tea Party wave threw out his fellow entitled club member Lisa Murkowski. McConnell colluded with her to subvert the Republican voters’ will and made it known that she would keep her seniority and perks if she was running and was elected as an “independent.” The trouble you have seen from her is not a bug, it is a key feature for McConnell’s clique.

However, Senator McConnell knows to keep up the rhetoric on the courts. He has now done so on Judge Sullivan. Tuesday, he oversaw the successful confirmation vote on Scott H. Rash, of Arizona, to be United States District Judge for the District of Arizona. He took the occasion of his opening remarks for the day to fulsomely protest the treatment of General Flynn.**

Notice that what Senator McConnell wants is more of the same, lots of posturing for reelection but no significant punishment for agencies he intends to keep just as weaponized as ever. He does see that his gang made a little too obvious mess this time, and might cause problems for the Senate club this November. He even appointed Little Marco to replace Senator Burr, the no longer useful link between the Senate Republican leadership, the deep state, and the DNC. There was, of course, no mention of the weaponization of the Treasury Department to spy on those around Trump.

You may be sure Leader McConnell will be shocked at each damaging revelation dragged out of the false cloak of “national security” redactions and classifications. His most earnest wish must be that the truths revealed do not touch Lindsey and ol’ Maverick. His second most earnest wish must be that the hearings, and the permanent replacement for Richard Grenell, do not clearly expose the continued domestic constitutional threat created by the “reformed” FISA process.

Likewise, Chief Justice Roberts most fervently hopes that the stain does not spread too quickly, from FISA applications to Foreign Intelligence Surveillance Court judges, to his own role. John Roberts is the FISC supervisor and appoints the secret court’s members. He fully owns the mess his gang created. No wonder he, a Bush judge, is so touchy about President Trump speaking the plain truth about partisanship in the judiciary.

Both McConnell and Roberts must do much more to merit public confidence and conservative support. They can start leading the cleanup or continue enabling the cover-up. In either case, this election matters more than any other in our lifetimes. We will either affirm banana republic conduct by our security apparatus or we will give a stinging rebuke to the Democrats, Republicans, and agency operatives who dared truly interfere in our election process.


* Chief Justice Roberts Statement – Nomination Process

“…Judges and Justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.

Judges have to have the humility to recognize that they operate within a system of precedent shaped by other judges equally striving to live up to the judicial oath, and judges have to have modesty to be open in the decisional process to the considered views of their colleagues on the bench.

Mr. Chairman, when I worked in the Department of Justice in the Office of the Solicitor General, it was my job to argue cases for the United States before the Supreme Court. I always found it very moving to stand before the Justices and say, “I speak for my country.” But it was after I left the Department and began arguing cases against the United States, that I fully appreciated the importance of the Supreme Court in our constitutional system. Here was the United States, the most powerful entity in the world, aligned against my client, and yet all I had to do was convince the Court that I was right on the law, and the Government was wrong, and all that power and might would recede in deference to the rule of law.

That is a remarkable thing. It is what we mean when we say that we are a Government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans. It is the envy of the world, because without the rule of law, any rights are meaningless.”

“…Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench, and I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it’s my job to call balls and strikes, and not to pitch or bat.

** Partial Senate Majority Leader McConnell auto-transcription from opening floor speech, May 19, 2020, 10:05:56 AM:

Over the last several years we’ve been painfully reminded that our nation and liberties are not only threatened, the fabric of our country is also hurt when tools and capabilities that are meant to keep us safe are abused. In ways that are at best reckless, sloppy, unaccountable, or worse polluted by political bias.

In 2016 the FBI embarked on a counterintelligence investigation against Donald Trump’s campaign for the presidency. Federal law enforcement used taxpayer money to scrutinize a political campaign in the middle of a democratic election. You would have thought such a radical step must have sprung from an air tight justification. Certainly you would think the outgoing Obama administration should only have used the awesome power of the federal government to pray into their political rivals if they had a slam-dunk basis for doing so. But that is not what they had.

In one instance the FBI got permission to surveil a Trump associate by telling half truths, blurring evidence, and citing sketchy sources like a dossier, partisan opposition research that had been funded by the Hillary Clinton campaign and the DNC. Here’s how even the New York Times explained the recent findings of the justice department’s inspector general. Here’s what the New York Times said. “The FBI had cherry-picked and misstated evidence about the Trump advisor when seeking permission to wiretapping.” That, madam president, was from the New York Times.

So an American citizen’s campaign for the American presidency was treated like a hostile foreign power by our own law enforcement in part because the democratic-led executive branch manipulated documents, hid contrary evidence, and made a DNC funded dossier a launch pad for an investigation. The inspector general counted seven significant inaccuracies and omissions. Here’s his report. “We identified multiple instances in which factual assertions relied upon and the — in the FISA application were inaccurate, incomplete, or unsupported by appropriate documentation based upon information the FBI had in its possession at the time application was filed.”

Did you catch that last part? Based upon information the FBI had in its possession at the time, the application was filed. So we’re either talking about gross incompetence or intentional bias.

Does any senator think it’s acceptable for any federal warrant application to include seven significant inaccuracies and omissions? But this wasn’t just a run of the mill warrant. It was a FISA warrant to snoop on a presidential campaign.

This was just one of the realities that President Trump’s Democratic critics spent years calling conspiracy theories or inventions of the president’s mind. Yet here it is in black and white from exactly the kind of independent inspector general the democrats rushed to embrace when convenient. Sadly, this was no isolated incident.

Just recently Attorney General Barr has had to take the incredible step of unwinding a DOJ prosecution of another former Trump advisor because the government’s case against him was unfair and distorted as well. It was largely on the basis of these proceedings that Democrats and the media spent years fixated on wild theories of Russian collusion. But upon investigation, the Mueller investigation — remember that one? — it is those wild allegations that collapsed along with the credibility of several of these investigations that helped create the cloud of suspicion in the first place.

In the words of our distinguished attorney general, “the proper investigative and prosecutorial standards of the department of justice were abused. We saw two different standards of justice emerge. One that applied to President Trump and his associates and the other that applied to everybody else. We can’t allow this to ever happen again.” End quote. That’s from the attorney general.

Oh, and by the way, as if this debacle needed even more shocking behavior, i understand a federal judge may try to continue prosecuting one of these cases, even though the prosecution itself wants to drop it. The judge has taken it upon himself to go browsing for other hostile parties. Obviously that subverts our constitutional order in which the executive alone decides whether to prosecute cases. So look, madam president, no matter what some Washington Democrats may try to claim, you’re not crazy or a conspiracy theorist if you see a pattern of institutional unfairness toward this president. You would have to be blind not to see one. You’d have to be blind not to see one.

All of this is why the Senate passed important FISA reforms in last week’s bill to help bring accountability and transparency into that flawed process. And we aren’t nearly finished. As soon as possible, the full Senate will vote on Mr. Ratcliffe’s nomination. The president will have a Senate-confirmed who can pursue the security work of our intelligence community while ensuring that the IC stays out of politics and out of the papers. And just yesterday Chairman Graham announced the Judiciary Committee will vote on a serious new set of subpoenas so the Senate can hear from key players like James Comey, Andrew Mccabe, Loretta Lynch, and many others to continue getting to the bottom of it.

So let me say that again. Senate Republicans are taking steps to issue new subpoenas to a wide variety of Obama administration officials with some relationship to the abuses i’ve just laid out. The American people deserve answers about how such abuses could happen and we intend to get those answers. So, madam president, i’ve been a strong supporter of law enforcement and the intelligence community during my career. The American people sleep safer because dedicated people are protecting our country and bringing our foes to justice. It is precisely because i support these missions that i feel so strongly this malpractice cannot be tolerated and must never be repeated.

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  1. Clifford A. Brown Contributor
    Clifford A. Brown

    If this is a bit jarring after “Soothing sounds: Birds singing, truckers honking,” I offer this classic pre- and post- COVID-19 anthem by the best “Karen:”

    • #1
    • May 19, 2020, at 8:27 PM PDT
    • 5 likes
  2. RightAngles Member

    Another great post, CIifford. I blame Roberts for Obamacare, and he has not redeemed himself in any way ever since.

    • #2
    • May 19, 2020, at 8:39 PM PDT
    • 15 likes
  3. Stad Thatcher

    Mitch needs to get these judicial nominees through at the speed of light. As for Roberts, watch him move to the left after the next conservative Supreme Court justice is seated . . .

    • #3
    • May 20, 2020, at 5:00 AM PDT
    • 5 likes
  4. Rodin Member

    A very painful reminder, @cliffordbrown, of how far we have to go to save our country.

    • #4
    • May 20, 2020, at 6:49 AM PDT
    • 5 likes
  5. PHCheese Member

    With all the spying that happened under Obama I doubt there is a handful of politicians or judges that are not compromised. I know Roberts has the problem with the adoption of his two Irish daughters. McConnell has problems with his Chinese in-laws and the list goes on. The only way they are safe if they are Democrats or act like it.

    • #5
    • May 20, 2020, at 7:03 AM PDT
    • 4 likes
  6. Jerry Giordano (Arizona Patrio… Member

    On a personal note: I did not realize that Scott Rash had been nominated for US District Court Judge here in Tucson. He’s been a Pima County Superior Court Judge for a number of years, and a practicing lawyer in town before that. He is an old friend and colleague, though I haven’t seen him much lately (since he’s been on the bench).

    He’s a great guy, and we were active in the (small) Christian Legal Society group that used to meet once a month downtown. The group included another terrific judge, John Pelander, who was then on the Arizona Court of Appeals and later served as a Justice on the Arizona Supreme Court, including some years as Vice Chief Justice, retiring last year.

    • #6
    • May 20, 2020, at 11:07 AM PDT
    • 4 likes
  7. Clifford A. Brown Contributor
    Clifford A. Brown

    Jerry Giordano (Arizona Patrio… (View Comment):

    On a personal note: I did not realize that Scott Rash had been nominated for US District Court Judge here in Tucson. He’s been a Pima County Superior Court Judge for a number of years, and a practicing lawyer in town before that. He is an old friend and colleague, though I haven’t seen him much lately (since he’s been on the bench).

    He’s a great guy, and we were active in the (small) Christian Legal Society group that used to meet once a month downtown. The group included another terrific judge, John Pelander, who was then on the Arizona Court of Appeals and later served as a Justice on the Arizona Supreme Court, including some years as Vice Chief Justice, retiring last year.

    That is a good report, especially encouraging that President Trump is making good calls down to the district court level. It is also a moment of encouragement that the vote was 74-20 (6 not voting), and that Arizona’s senior senator, a Democrat, Kyrsten Sinema, voted to confirm a conservative who is openly Christian. I credit that at least to her political shrewdness, understanding her state.

    • #7
    • May 20, 2020, at 11:44 AM PDT
    • 3 likes
  8. Ontheleftcoast Member

    Stad (View Comment):

    Mitch needs to get these judicial nominees through at the speed of light. As for Roberts, watch him move to the left after the next conservative Supreme Court justice is seated . . .

    No, we  need him to. I don’t think he feels the same need, except to the extent that it enhances his power.

    • #8
    • May 20, 2020, at 12:33 PM PDT
    • 1 like
  9. AdamSmithFan Member

    I respectfully disagree with your attack on the Chief Justice with respect to the FISA Court. Yes he appoints its members but the review of the FISA process by the DOJ found problems with every FISA application that they looked into. I think it’s pretty clear that the intelligence community for many years have been abusing the FISA process by misrepresenting the cases they have. It’s obvious cases have been presented as much stronger than they actually are to get FISA warrants and that is not specific to Russiagate.

    Secondly I think there’s a little too much of the Jim DeMint ‘better to be a minority of rock ribbed conservative stuff’ in your critique of McConnell. McConnell has given Trump one of the few accomplishments of his presidency and that’s the judges. And he got those judges confirmed with votes from squishes like Susan Collins and Murkowski a lot of the time.

    Also Roberts was right on the Obama and Trump judges thing. Read anything by Justice Scalia or Justice Thomas- hardly two RINOS-they dispel that nonsense very quickly. Liberal and conservative justices interpret the constitution differently. I.e living constitution v originalism. It’s sad to see conservatives fall into the liberal media tactic of purely basing their view of the work of the court based on how they perceive the outcome of a case. Read the opinions and make your arguments based on that. There’s plenty of liberal living constitution nonsense to attack without lazy attacks of ‘Obama judges’ decided to do x.

    It shouldn’t escape people’s notice that Trump won an absolute fluke last time in an electoral college inside straight. If you think that a president with a lower approval rating than the measly 46% he got last time, is going to win a huge electoral victory on the back of tarring and feathering the best friend he’s had in the Senate- McConnell- and attacking the Chief Justice, I think you’ll be very disappointed on election night.

    If Trump is do anything in his second term, he’s going to need McConnell big time. He’ll also need Susan Collins and Cory Gardner both of whom look like losing their seats because of the president’s unpopularity in their states.

    Republicans can put all their faith in Trump if they like at the expanse of the McConnells of the world but if all he’s doing is scraping another electoral college win with a Democratic House and Senate, what’s the point? Oh well, he fights, I guess. Great……

    • #9
    • May 20, 2020, at 1:09 PM PDT
    • Like
    • This comment has been edited.
  10. Stad Thatcher

    Clifford A. Brown (View Comment):
    Arizona’s senior senator, a Democrat, Kyrsten Sinema, voted to confirm a conservative who is openly Christian. I credit that at least to her political shrewdness, understanding her state.

    She reminds me a little of Bill Clinton. Flaming liberal in political beliefs, more practical in political actions . . .

    Keep an eye on her. Maybe a dark horse Veep pick . . .

    • #10
    • May 20, 2020, at 1:30 PM PDT
    • 3 likes
  11. Gazpacho Grande' Coolidge

    AdamSmithFan (View Comment):

    I respectfully disagree with your attack on the Chief Justice with respect to the FISA Court. Yes he appoints its members but the review of the FISA process by the DOJ found problems with every FISA application that they looked into. I think it’s pretty clear that the intelligence community for many years have been abusing the FISA process by misrepresenting the cases they have. It’s obvious cases have been presented as much stronger than they actually are to get FISA warrants and that is not specific to Russiagate.

    Secondly I think there’s a little too much of the Jim DeMint ‘better to be a minority of rock ribbed conservative stuff’ in your critique of McConnell. McConnell has given Trump one of the few accomplishments of his presidency and that’s the judges. And he got those judges confirmed with votes from squishes like Susan Collins and Murkowski a lot of the time.

    Also Roberts was right on the Obama and Trump judges thing. Read anything by Justice Scalia or Justice Thomas- hardly two RINOS-they dispel that nonsense very quickly. Liberal and conservative justices interpret the constitution differently. I.e living constitution v originalism. It’s sad to see conservatives fall into the liberal media tactic of purely basing their view of the work of the court based on how they perceive the outcome of a case. Read the opinions and make your arguments based on that. There’s plenty of liberal living constitution nonsense to attack without lazy attacks of ‘Obama judges’ decided to do x.

    It shouldn’t escape people’s notice that Trump won an absolute fluke last time in an electoral college inside straight. If you think that a president with a lower approval rating than the measly 46% he got last time, is going to win a huge electoral victory on the back of tarring and feathering the best friend he’s had in the Senate- McConnell- and attacking the Chief Justice, I think you’ll be very disappointed on election night.

    If Trump is do anything in his second term, he’s going to need McConnell big time. He’ll also need Susan Collins and Cory Gardner both of whom look like losing their seats because of the president’s unpopularity in their states.

    Republicans can put all their faith in Trump if they like at the expanse of the McConnells of the world but if all he’s doing is scraping another electoral college win with a Democratic House and Senate, what’s the point? Oh well, he fights, I guess. Great……

    Wow.

    Well, McConnell delivered Obama 2 elections in a row, so, y’know, McConnell’s ability to deliver Kentucky for Republicans is not something he seems to have demonstrated an ability to do – and he wasn’t exactly a Trump supporter in 2016.

    But ok.

    • #11
    • May 20, 2020, at 3:22 PM PDT
    • 1 like
  12. Metalheaddoc Member
    Metalheaddoc Joined in the first year of Ricochet Ricochet Charter Member

    AdamSmithFan (View Comment):

    I respectfully disagree with your attack on the Chief Justice with respect to the FISA Court. Yes he appoints its members but the review of the FISA process by the DOJ found problems with every FISA application that they looked into. I think it’s pretty clear that the intelligence community for many years have been abusing the FISA process by misrepresenting the cases they have. It’s obvious cases have been presented as much stronger than they actually are to get FISA warrants and that is not specific to Russiagate.

    Since the FISA process is basically one sided with nobody to defend the target of the warrant, the judges need to be especially skeptical of what is presented to protect the rights of the defendant. Aren’t the FISA judges supposed to…you know…”judge”? But clearly they just rubber stamp anything given to them. And since there is no punishment for lying to the FISA court, why should the FBI even bother to change their ways? Roberts has made no reforms, no changes, no comments, no criticism, no nothing. 

    • #12
    • May 20, 2020, at 3:37 PM PDT
    • 3 likes
  13. AdamSmithFan Member

    Metalheaddoc (View Comment):

    AdamSmithFan (View Comment):

    I respectfully disagree with your attack on the Chief Justice with respect to the FISA Court. Yes he appoints its members but the review of the FISA process by the DOJ found problems with every FISA application that they looked into. I think it’s pretty clear that the intelligence community for many years have been abusing the FISA process by misrepresenting the cases they have. It’s obvious cases have been presented as much stronger than they actually are to get FISA warrants and that is not specific to Russiagate.

    Since the FISA process is basically one sided with nobody to defend the target of the warrant, the judges need to be especially skeptical of what is presented to protect the rights of the defendant. Aren’t the FISA judges supposed to…you know…”judge”? But clearly they just rubber stamp anything given to them. And since there is no punishment for lying to the FISA court, why should the FBI even bother to change their ways? Roberts has made no reforms, no changes, no comments, no criticism, no nothing.

    FISA is a disgrace and has been abused by the government for sure. It should be reformed or disbanded. That’s a job for Congress not the Chief Justice. 

    • #13
    • May 20, 2020, at 3:46 PM PDT
    • Like
  14. Clifford A. Brown Contributor
    Clifford A. Brown

    AdamSmithFan (View Comment):

    Metalheaddoc (View Comment):

    AdamSmithFan (View Comment):

    I respectfully disagree with your attack on the Chief Justice with respect to the FISA Court. Yes he appoints its members but the review of the FISA process by the DOJ found problems with every FISA application that they looked into. I think it’s pretty clear that the intelligence community for many years have been abusing the FISA process by misrepresenting the cases they have. It’s obvious cases have been presented as much stronger than they actually are to get FISA warrants and that is not specific to Russiagate.

    Since the FISA process is basically one sided with nobody to defend the target of the warrant, the judges need to be especially skeptical of what is presented to protect the rights of the defendant. Aren’t the FISA judges supposed to…you know…”judge”? But clearly they just rubber stamp anything given to them. And since there is no punishment for lying to the FISA court, why should the FBI even bother to change their ways? Roberts has made no reforms, no changes, no comments, no criticism, no nothing.

    FISA is a disgrace and has been abused by the government for sure. It should be reformed or disbanded. That’s a job for Congress not the Chief Justice.

    It is a job for both. The Foreign Surveillance Court of Review promulgates the rules for itself and for the FISC. Chief Justice Roberts can and should follow the example of Chief Justice Rehnquist, appointing the equivalent of the “Judicial Conduct and Disability Act Study Committee,” which produced the “Breyer Committee Report” in response to concerns expressed in Congress about the implementation of the Judicial Conduct and Disability Act of 1980. This assumes that there are no allegations of judicial misconduct, in which case the question is whether this special circuit has a judicial council, as other circuits. If no, they should be directed to create one. If yes, that is the mechanism for at least temporarily sidelining badly behaving judges, preventing them from having cases assigned, while the matter may be referred to Congress for possible action (impeachment). 

    • #14
    • May 20, 2020, at 4:54 PM PDT
    • 2 likes
  15. AdamSmithFan Member

    Clifford A. Brown (View Comment):

    AdamSmithFan (View Comment):

    Metalheaddoc (View Comment):

    AdamSmithFan (View Comment):

    I respectfully disagree with your attack on the Chief Justice with respect to the FISA Court. Yes he appoints its members but the review of the FISA process by the DOJ found problems with every FISA application that they looked into. I think it’s pretty clear that the intelligence community for many years have been abusing the FISA process by misrepresenting the cases they have. It’s obvious cases have been presented as much stronger than they actually are to get FISA warrants and that is not specific to Russiagate.

    Since the FISA process is basically one sided with nobody to defend the target of the warrant, the judges need to be especially skeptical of what is presented to protect the rights of the defendant. Aren’t the FISA judges supposed to…you know…”judge”? But clearly they just rubber stamp anything given to them. And since there is no punishment for lying to the FISA court, why should the FBI even bother to change their ways? Roberts has made no reforms, no changes, no comments, no criticism, no nothing.

    FISA is a disgrace and has been abused by the government for sure. It should be reformed or disbanded. That’s a job for Congress not the Chief Justice.

    It is a job for both. The Foreign Surveillance Court of Review promulgates the rules for itself and for the FISC. Chief Justice Roberts can and should follow the example of Chief Justice Rehnquist, appointing the equivalent of the “Judicial Conduct and Disability Act Study Committee,” which produced the “Breyer Committee Report” in response to concerns expressed in Congress about the implementation of the Judicial Conduct and Disability Act of 1980. This assumes that there are no allegations of judicial misconduct, in which case the question is whether this special circuit has a judicial council, as other circuits. If no, they should be directed to create one. If yes, that is the mechanism for at least temporarily sidelining badly behaving judges, preventing them from having cases assigned, while the matter may be referred to Congress for possible action (impeachment).

    It’s very hard to argue with this but until the DOJ reviewed the FISA cases, there wasn’t wide spread criticism of it. Apart from Civil Libertarians who never liked it. My point is, I think it’s unreasonable to expect Roberts to have looked into something that there wasn’t many complaints about.

    I hope FISA is scraped as it currently stands and the responsibility for it put back where it should always have been the DOJ with oversight by Congress. 

    • #15
    • May 20, 2020, at 5:00 PM PDT
    • 2 likes