In a recent post, I was called a geek by a self-confessed dork, a.k.a., the Columbus Clipper. At the risk of being elevated to “dweeb” status, I think the on-going machinations over the McKeel cert petition are fascinating. Here is a link to a letter that the Solicitor General’s office sent to Gene Fidell in response to his argument that once CAAF grants review of a case, all issues in that case — granted or not — are fair game at the Supremes:
I am enjoying this rare high-level legal discussion of military justice appeals. I mean, if all of the areas of law got together and had a party at MCCXXIII, the bouncer wouldn’t let military justice past the velvet rope. And yet here’s the S.G.’s office paying attention to little ol’ us. I do declare.
The Supreme Court’s front doors weigh 13 tons. (I’m not kidding — here’s a web page devoted to the Supreme Court’s front doors: http://www.supremecourtus.gov/about/bronzedoors.pdf. What next, their own blog?) Trying to pry open 13-ton bronze doors is a fitting metaphor for trying to get a cert grant. In the real world, it matters little whether a military appellant can take his case to the Supreme Court because the result will be the same as for an appellant who can’t. Perhaps the better reform would be to open CAAF’s comparatively inviting doorway a little further. How about a system in which CAAF will review any assignment of error actually raised? (I wouldn’t make CAAF review merits submission cases on the merits, though I would still allow it to specify issues if it chose to do so.) Of course, this would have the concomitant effect of allowing an unsuccessful appellant to file a cert petition in all of these cases. But the more important effect would be a civilian court’s resolution of the merits of any issue that an appellate defense counsel thinks is important enough to raise.