Assistant Professor of Law Shirin Sinnar spoke with John Roemer from the Daily Journal about the absence of California judges on the FISA court and issues this causes.

The hush-hush 11-judge Foreign Intelligence Surveillance Court that authorizes governmental spying has been around since the 1970s – but has had only one California judge on its roster over the decades. He was the late U.S. District Judge Thomas J. MacBride of Sacramento, a President John F. Kennedy appointee to the bench. Former Chief Justice Warren E. Berger placed MacBride on what has become known as the FISA court; he served from 1979 to 1980. MacBride's status as a Democratic judicial appointee and a Californian distinguishes him from most FISA court judges, who have largely been Republican and from elsewhere.

Why so? Plenty of national security litigation originates in California, and Silicon Valley has supplied much surveillance technology.

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“The absence of California judges on the FISA court is striking,” said Shirin Sinnar, a national security law authority at Stanford Law School. The rules for the court's composition create an East Coast imbalance, she noted.

“The other issue is that because the FISA judges are chosen by the chief justice, he has a lot of discretion,” Sinnar said. “You can contrast that with the power the president has in appointing federal judges, where the need for senate confirmation at least moderates such preferences.”