On this day when the Senate Armed Services Committee unanimously approved the two CAAF nominations, what should I find waiting for me when I arrived home from work? Why, my six-year-old daughter asking me to pretend to be a zombie and eat her brain. But, more apropos of this post, an Amazon box containing Craig Peter Cummings’ Is anyone listening? An analysis of public opinion of the Supreme Court, diversity in the Courts of Appeals, and confirmations to the military’s highest court (2005). See “Black Friday shopping alert,” 24 Nov, available at http://caaflog.blogspot.com/2006/11/black-friday-shopping-alert.html
The relevant part of the book, which is essentially Cummings’ republished doctoral dissertation from Columbia, runs from pages 79-126. I’ve now read that entire section and the most striking lesson I learned is that one can earn a Ph.D. from a prestigious Ivy League institution by producing remarkably slipshod work. The paper suffers from basic factual errors, erroneous citations, and improper usage. Plus, entire sections are derivative of other authors’ work (principally Jonathan Lurie’s), poorly attributed, and overly reliant on secondary rather than primary sources. Here are just a few examples from a much larger pool:
Page 79: “Unlike all other federal courts which are governed under Article III of the Constitution, this court [CAAF] is governed under Article I.” Well, other than the United States Tax Court, which is located about a block away from CAAF’s courthouse. Oh, Bankruptcy Courts are also Article I courts. Hhhmm, I almost forgot the U.S. Court of Federal Claims. Oh, right, there’s also the U.S. Court of Appeals for Veterans Claims. See John Stewart et al., America (The Book) 85 (2004) (“U.S. Court of Veterans Affairs [sic] Looking for the world’s most depressing court experience? You’ve found it!”). Oh, and who can forget the U.S. district courts for the districts of Guam, the Virgin Islands, and the Northern Mariana Islands? I could go on, but let’s just say that Cummings drastically undercounted the number of Article I courts.
Page 91: “The first recommendation was to change the status of the court from an Article III court to an Article I court . . . .” Other way around.
Page 93: “The 146 articles of the UCMJ . . . .” While the UCMJ ends at Article 146, there are actually, by my count, 159 articles. Cummings apparently overlooked such provisions as Article 106a (espionage), Article 112a (drug offenses), and Article 123a (bad check offenses).
Page 101: “The USCAAF automatically reviews all death penalty cases [and] cases affecting flag-level officers (General or Admiral) . . . .” That latter provision was eliminated from Article 67 in 1983. See Military Justice Act of 1983, Pub. L. No. 98-209, §§ 5(e), 7(c), 97 Stat. 1399, 1402.
Page 101: “As in federal courts of appeals, the USCAAF chooses, upon petition for review from the accused service member, the remaining cases it will consider.” While the wording is a bit abstruse, it seems to be suggesting (erroneously, of course) that the geographic courts of appeals exercise discretionary rather than mandatory jurisdiction.
I know Cummings isn’t a lawyer, but if you are going to write a doctoral dissertation on a legal subject, you should do considerably better than this. It doesn’t look like he ever had a lawyer read it before it was published.
The book does contain some original research concerning the pace of CMA/CAAF confirmations and compares those with rates for confirmation of Article III judges and Article II political appointees.
I’m a bit queasy about accepting Cummings’ numbers. At one point he writes, “[O]nly eighteen judges have served on this court since it was established in 1951.” 81-82. Later he writes, “All twenty judges nominated to the USCAAF were confirmed.” 113. By my count, the actual number of CMA/CAAF judges splits the difference: 19. Cummings seems to get to 20 on page 113 by counting Judge Darden twice. But I don’t believe Judge Darden was nominated more than once. Professor Lurie seems to support my recollection. Jonathan Lurie, Pursuing Military Justice 219 (1998) (“Several months before the Calley decision was announced, Judge Darden had written to Nixon expressing his desire to resign from USCMA. He had served for five years of a term – originally Kilday’s – to end in May 1976.”). So Cummings seems to have gotten to 20 through an erroneous double counting. He must have stopped at 18 earlier by overlooking someone. But how did he fail to notice that he used two different numbers for the same thing within 31 pages of each other? It’s true that I’ve never read a dissertation before (not even my brother’s, though he does have a Ph.D.), but I always assumed they were considerably better executed than this.
Just for the heck of it, let’s suspend disbelief and look at Cummings’ numbers and his conclusions.
“On average, the time from nomination to confirmation in the regional federal circuit courts takes 92.37 days, over twice as long as in the USCAAF where the average time is 44.35 days.” 114.
“This significant difference indicates a far less politicized process for nominees to the USCAAF. . . . [N]ominations to the USCAAF do not create political ‘turf wars’ as do the regional courts, where home-state senators are especially attentive to the ideological leaning of the judicial nominee.” Id.
“[C]onfirmations to the USCAAF take longer than do confirmations to other positions in [the] Defense Department.” 117.
The delay in confirmations has gotten longer over time. 119. [But it looks like Lance-Judges Stucky and Ryan will be confirmed in fewer than 25 days]
Nominations that would tilt CMA’s/CAAF’s balance away from the party that controls the Senate “do not seem to increase confirmation delay, which may suggest that senators are not attentive to the potential shift in ideology in the USCAAF. . . . This finding again points to a less politicized process for judges to the USCAAF.” 119
“Yet, confirmation to this court requires more time than do nominations to all other appointed positions within Defense, which suggests that these judges do receive a more careful examination.” 120.
“The negative interpretation of these findings is that the Senate simply doesn’t care a great deal about who gets selected to this court. . . . A more optimistic view of the findings is that the judges nominated to this court are of the highest caliber, and that the absence of partisan conflict reflects the apolitical nature of military justice. Indeed, the judges of this court are not setting policy on controversial social issues, such as affirmative action, abortion, or capital punishment.” 120-21. Apparently Cummings hasn’t looked at CAAF’s docket recently.
It’s also strange that in a political science dissertation that expressly discusses partisan politics, Cummings never mentions UCMJ article 142(b)(3)’s political balance requirement. Ockham’s Razor would suggest that he doesn’t mention it because he never read the statutes that provide CAAF’s basic charter.
Finally, I actually laughed out loud when I came to this howler in Cummings’ conclusion: “Further research is necessary to estimate whether this ‘rubber-stamping’ is having negative effects on military justice and morale in the armed forces.” I can just see it – one Marine in a fighting hole in Anbar province turns to his buddy and says, “Boy is it upsetting that the Senate Armed Services Committee didn’t give Stucky and Ryan as thorough a grilling as Schumer gave Alito.” Come to think of it, maybe the brain-eating zombie was apropos of this post after all.