![handle is hein.journals/wlro92 and id is 1 raw text is:
THE WARS OF THE JUDGES
Stephen I. Vladeck*
INTRODUCTION
Professor Anderson's timely and trenchant study of judicial
lobbying opens with an important vignette: the controversial role
played by Judge John Bates in the surveillance reform debate sparked by
the June 2013 disclosures by Edward Snowden.' The episode arose
during Congress's consideration of different bills (the final version of
which ended up as law in the USA FREEDOM Act of 2015)2 to reform
the Foreign Intelligence Surveillance Act (FISA) and the specialized
court-the Foreign Intelligence Surveillance Court (FISC)-that hears
cases arising under FISA.3 One of the central procedural elements of the
reform effort was the proposal to introduce a special advocate-a
security-cleared lawyer who could stake out and vigorously defend a
position adversarial to the government in what were usually ex parte
judicial proceedings.4 And although Judge Bates also objected to other
elements of the reforms (including proposals to require more
transparency in FISC decisions), the special advocate proposal
certainly appeared to be his central target.
To that end, Judge Bates took the initiative to send at least three (and
perhaps more) letters to Congress objecting to various aspects of the
different reform bills. His objections included both procedural and
substantive critiques that evolved as the proposals made their way
through the legislative process. The last of Judge Bates's public letters
* Professor of Law, University of Texas School of Law.
1. J. Jonas Anderson, Judicial Lobbying, 91 WASH. L. REv. 401, 402-03 (2016).
2. Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline
Over Monitoring Act of 2015, Pub. L. No. 114-23, 129 Stat. 268 (2015).
3. For a general discussion of the FISC and its centrality to the post-Snowden reform
conversation, see Stephen I. Vladeck, The FISA Court and Article III, 72 WASH. & LEE L. REV.
1161 (2015).
4. See generally CONSTITUTION PROJECT, THE CASE FOR A FISA SPECIAL ADVOCATE (2014),
http://www.constitutionproject.org/wp-content/uploads/2014/05/The-Case-for-a-FISA-Special-
Advocate_FINAL.pdf [https://perma.cc/J49S-ANIA]. For an elegant and powerful defense of the
value of such adversarial participation before the typically ex parte FISC, see ACLU v. Clapper, 785
F.3d 787, 829-31 (2d Cir. 2015) (Sack, J., concurring).
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