When Congress adopted the UCMJ in 1950, it provided that “[t]he Court of Military Appeals shall consist of three judges appointed from civilian life.”
In 1990, Congress defined that language in a way that limited the discretion of the President in picking nominees for CMA vacancies. In a section of the National Defense Authorization Act for Fiscal Year 1991 titled “CLARIFICATION OF CERTAIN PROVISIONS IN UNIFORM CODE OF MILITARY JUSTICE,” Congress provided: “For purposes of appointment of judges to the court, a person retired from the armed forces after 20 or more years of active service (whether or not such person is on the retired list) shall not be considered to be in civilian life.” 104 Stat. 1565, 1565.
Now I don’t know who actually proposed adding that provision to the UCMJ or why. But I can tell you a common belief about the provision’s origins. According to military justice lore, the Secretary of Transportation was supporting Joe Baum, who was then the civilian chief judge of the Coast Guard Court of Military Review, for an upcoming vacancy on the Court of Military Appeals and someone in Congress inserted this language into the UCMJ to torpedo his potential nomination. Again, I have no idea whether that’s actually true, but that understanding is so widespread that Article 142(b)(4) is typically called the Baum Amendment.
Article 142(b)(4) serves as an ill-advised limitation on the President’s discretion. Note that the amendment doesn’t preclude the President from nominating a retired — or even drilling — reservist to the court, as Presidents have done since the amendment was enacted. But it does preclude the President from exercising his discretion to nominate a distinguished retired active duty judge advocate for a CAAF judgeship.
One would think that a pretty good training ground to serve as a CAAF judge would be service on a Court of Criminal Appeals. Yet those who served on a CCA in an active duty capacity are now statutorily ineligible to serve on CAAF. (Judge Stucky, however, did serve on the Air Force Court as a reservist.) So, for example, the President can’t exercise his discretion to nominate a jurist who distinguished himself as an active duty CCA judge and then retired and went into civilian practice — like our very own Judge Mathews the Greatest. Nor could the President exercise his discretion to nominate a career military lawyer who retired and then distinguished himself on another federal bench, like Judge Wayne Alley (Brigadier General, U.S. Army, Retired) of the U.S. District Court for the Western District of Oklahoma or Judge William A. Moorman (Major General, U.S. Air Force, Retired) of the United States Court of Appeals for Veterans Claims.
To consider the case of the the man who inspired this post, why shouldn’t a President have the discretion to decide that the best nominee for CAAF is a 30-year Navy veteran who served for six years on the Navy Court of Military Review before serving as a civilian for many years on the Coast Guard Court? In my view, he should. Congress should rescind Article 142(b)(4)’s unwise limitation on presidential discretion.