This week, the Senate Committee on the Judiciary will vote on whether to advance five judicial nominees for lifetime appointments to the federal courts. Senate confirmation grants a judicial nominee the power not only to interpret the United States’ laws, but also to access sensitive national security information in the cases before them.
Far from being ministerial, this function requires senators to make a decision based on their own evaluation of a nominee’s fitness. The Senate’s constitutional advice-and-consent role—though always important in “prevent[ing] the appointment of unfit characters,” “curb[ing] Executive abuses of the appointment power,” and serving as a “check upon a spirit of favoritism in the President”—is “perhaps most consequential in the case of presidential appointments to the federal courts.” Article III judges receive lifetime appointments and, in interpreting the Constitution and resolving the disputes before them, address many of the country’s most significant issues.
By virtue of their positions, Article III judges both require and are entitled to access classified information “necessary to resolve” the cases before them. A vote to confirm a judicial nominee in the Senate confirmation process thus is effectively a vote to grant that individual a lifetime security clearance and access to some of the country’s most closely held secrets. Accordingly, the Senate must consider not only whether a nominee possesses the requisite character and fitness to serve as a judge, but also whether they can be trusted to protect U.S. national security.
Federal judges’ access to classified material
In many cases, Article III judges must have access to classified information so that they can properly adjudicate the issues before them. The need to access such information may arise in a wide variety of disputes, such as those involving immigration and deportation, asylum, habeas corpus, U.S. military conflict, terrorism, surveillance, and the Freedom of Information Act (FOIA). In some circumstances—including in the ongoing disputes in J.G.G. v. Trump and Abrego Garcia v. Noem—the government may claim that a case involves state secrets, under which the government may withhold evidence if a judge determines there is a “reasonable danger” that the disclosure “will expose military matters which, in the interest of national security, should not be divulged.”
Certain laws, such as FOIA, the Foreign Intelligence Surveillance Act of 1978, and the Classified Information Procedures Act (CIPA), outline processes for the court’s review of this information. The judiciary has established its own procedures for criminal cases under CIPA, including guidance on document storage, access, and security that protect classified information reviewed by a judge. Regardless of which procedures apply or a judge follows, however, the fact remains: in a case involving classified information, the presiding judge often bears the significant responsibility of reviewing information that could present national security risks and evaluating the government’s justification for any nondisclosure.
A judge’s review may include viewing the information ex parte or in camera, determining whether the government has made appropriate redactions, ruling on motions to seal entire court filings, or deciding what information, if any, can or must be revealed to the opposing party. Despite the significant deference that underlies the judiciary’s review of any executive branch classification or assertion of a national security risk, it is the judge’s role to determine whether the government may properly withhold information and, if so, whether the case can proceed at all.
For example, a judge may agree that the information cannot be disclosed and, thus, that a plaintiff must bring their case without the evidence. Or a judge may determine that a challenge cannot proceed without compromising national security, leaving no choice but to impose a more “draconian” result: dismissing the case and denying the plaintiff their day in court. This compromise, in which a judge is responsible for performing due diligence and determining the appropriateness of the government’s assertion of a national security risk, is necessary to prevent both unauthorized disclosure of the nation’s secrets and executive officer “caprice.”
For federal judges, the Senate confirmation process serves the role of a security clearance check
Individuals who need access to classified information—including federal law clerks—generally must go through the process of obtaining a security clearance. Under executive branch regulations, an applicant ordinarily is deemed eligible only after an adjudicator, following a rigorous review process, determines that such access would align with the United States’ national security interests. This process requires both a “common sense determination” and “careful consideration of” several factors that could indicate a nominee’s questionable judgment, including:
- Allegiance to the United States.
- Foreign influence.
- Foreign preference.
- Sexual behavior.
- Personal conduct.
- Financial considerations.
- Alcohol consumption.
- Drug involvement.
- Emotional, mental, and personality disorders.
- Criminal conduct.
- Security violations.
- Outside activities.
- Misuse of Information Technology Systems.
In determining an individual’s fitness for a security clearance, the adjudicator must resolve any doubts about granting a candidate access to classified information—the unauthorized disclosure of which “reasonably could be expected to result in damage to the national security”—“in favor of the national security.” Security clearances usually are subject to review and potential revocation, offering opportunities for the government to periodically ensure the clearance remains appropriate and aligned with national security interests.
In stark contrast to these standards, the Senate offers no public guidelines for determining whether a judicial nominee possesses the requisite character to protect the United States’ secrets. Each judicial nominee undergoes an F.B.I. background check during the confirmation process, which is intended to help senators determine whether a nominee is trustworthy or has issues that could compromise either their ability to do the job or their loyalty to the United States.
But even after reviewing the results of a nominee’s background check, the Senate could theoretically confirm to the federal bench—and effectively grant a lifetime security clearance to—an individual who, under the executive branch’s guidelines, would have been denied access to classified information. Or as the Senate Judiciary Committee did in 2018—when the Committee voted to advance then-Judge Brett Kavanaugh’s nomination to be an Associate Justice on the Supreme Court before a supplemental F.B.I. investigation was complete or shared with the committee—the Senate could theoretically confirm a nominee before the F.B.I. completes its initial or supplemental investigation. In reviewing the results of an F.B.I. background check for a judicial nominee, it is incumbent on senators to carefully consider each nominee’s fitness to protect the United States’ secrets.
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Current Article III judges ably fulfill their duty to handle classified material in a manner that balances U.S. national security sensitivities with the need for fair adjudication of disputes. But it remains a tremendous responsibility, and members of the Senate should take particular caution in reviewing the results of each judicial nominee’s F.B.I. background check. In this turbulent threat climate, it is more important than ever that the Senate ensure each judicial nominee possesses the “stability, trustworthiness, reliability, discretion, character, honesty, and judgment” to faithfully discharge their duties—without fear of coercion, without threat of reprisal, and without compromising national security.
