CAAF’s recent opinion in Adcock is the first decision in which the two new Judges join in dissent from the 3 longer sitting colleagues. Does this hearken back to the days of the 4-1 decision? I predict not. Why? The “Erdmann-factor.”
Judge Erdmann was nominated to the Court by President Bush on August 1, 2002 and confirmed on October 8, 2002. As a Conservative for judicial reform (around the globe), Montana jurist, and former judge advocate, he was a relatively conservative voice when he was nominated to the Court. After his confirmation, Judge Erdmann quickly joined his Clinton appointee brethren in “supervisory” decisions such as Diaz and Brunson (notably even Judge Crawford agreed with those opinions, or at least did not dissent) . By the end of the term he was writing opinions or concurring with Judge Baker in setting out supervisory limitations on the system and giving guidance to military judges, e.g. O’Connor (a providence inquiry case enforcing the S. Ct.’s decision in Ashcroft v. Free Speech Coalition) and King (concurring with Judge Baker that Judge Crawford’s opinion on waiver of confinement credit was wrong).
The transformation was not akin to Justice Blackmun’s memorable dissent from denial of cert. in Callins v. Collins, “From this day forward, I no longer shall tinker with the machinery of death.” But, it was certainly unexpected from the standpoint of those that only knew Judge Erdmann was a conservative judicial voice. I think the two new Judges will likely take their place on the Court and realize that CAAF’s role is wholly different than the role of any other federal appellate court, Art. I or Art. III. It’s not the 4th Cir., definitely not the 9th Cir., not the Court of Federal Claims, and definitely not a state appellate court. CAAF has its very own place in an imperfect system trying to teach the ever changing players in the system the right way to go about carrying out their duties in a just and fair manner, in compliance with the rules and regulations that attempt to provide service members a fair trial. Let’s see how Adcock is decided three years from now.