When I briefly pop my head out of the military justice bubble, I notice that there’s a presidential election going on.  For we military justice wonks, a significant responsibility of the President elected in November will be to nominate two CAAF judges.

There is little chance that the Senate will vote on the current nomination of Kevin Ohlson to take Judge Effron’s seat, which has been vacant for almost a year.  That nomination will die when the Senate adjourns at the end of the current Congress.  So whoever is inaugurated on 21 January 2013 will be able to nominate a replacement for Judge Effron.

Chief Judge Baker’s term will expire on 30 September 2015.  So in November, the American electorate will also choose someone to fill that vacancy.

Unfortunately, Article 142 imposes two limitations on the President’s discretion that eliminate many preeminently qualified potential CAAF judges.

One, which we’ve discussed before, is Article 142(b)(1), as defined by Article 142(b)(4), which disqualifies anyone retired from the military after serving 20 years on active duty from serving as a CAAF judge.  The effect of this is to disqualify from CAAF — among many others — anyone who successfully served as a CCA judge, which would seem to be a pretty good background for a CAAF judge.  While I can understand why we may not want someone to go directly from the military onto CAAF, what about a distinguished former military jurist — like our own Judge Mathews the Greatest or ABA Executive Director Jack Rives — who has spent time in the civilian sector following military service?  Federal law provides that “[a] person may not be appointed as Secretary of Defense within seven years after relief from active duty as a commissioned officer of a regular component of an armed force.”  10 U.S.C. § 113 (2006).  Why is there a lifetime ban on retired active duty servicemembers from serving as a CAAF judge but only a seven-year cooling -off period for service as SECDEF?

A second limitation arises from Article 142(b)(3)’s political party restriction.  Under that provision, no more than three CAAF judges can be members of the same political party.  Why?  Who cares?  I assume that Judge Erdmann, Judge Stucky, and Judge Ryan are all Republicans.  All three are wonderful judges.  But this last term, Judge Erdmann and Judge Stucky tied for the two judges least likely to vote together.  In our end o’ term rankings, Judge Erdmann is usually among the most likely judges to vote for the defense, Judge Stucky is among the most likely to vote for the government, and Judge Ryan is in the middle.  None of them has a results oriented jurisprudence; rather, they vote the way they do as a matter of principle and don’t appear to hesitate to vote for either side when their principles favor a vote for that party.  It’s just that Judge Erdmann’s motivating jurisprudential principles make him more likely to vote for the defense than the Court’s average while Judge Stucky’s motivating jurisprudential principles make him more likely to vote for the government than the Court’s average with Judge Ryan in between.  All three have differing jurisprudential philosophies despite sharing a political affiliation (if my assumption is right).

If Judge Erdmann, Judge Stucky, and Judge Ryan are all Republicans, then the incoming President won’t be allowed to select a Republican to fill the current vacancy.  So if Governor Romney were to win the election, he could not nominate a member of his own political party for the post.

Those provisions of Article 142 that unnecessarily constrain the President’s discretion to select the optimal CAAF judge should be repealed or amended.

7 Responses to “Article 142’s unwise limitations on the President’s discretion to pick the best possible CAAF judges”

  1. Charlie Gittins says:

    Dwight, I like the way you think, but I think it is a good idea to keep AD military retirees off the CAAF court.  If the idea of civilian court oversight of the MJ system is the goal, which I believe is completely appropriate and proper, a military retiree is not an appropriate selection, IMO.  You name a couple of great CCA judges who might do a nice job on the Court, but I can think of many more who would have no business sitting on CAAF.  I look back to Judge Wiss and look at a guy who was a reserve retired guy who looked out for the member, which is what I think Congress had in mind when they created CAAF.  I am not sure that a dude or dudesss who served 20 years active duty, and who was clearly a cool-aide drinker should be on the court.  If that eliminates a few really fair judges, I am OK with that, since I think it is better to have less miiiitary experience when you are looking to have civilian oversight of the military.  I have practiced before way too many military officer Government hacks to endorse a change to that rule to allow them to dilute civilian oversight of the MJ system. I could care less for the party . . .  I just want a judge that I can believe, and I can tell my client, will be fair.  Far too many CCA judges fail that basic test, IMO.  I’d rather not have those clowns on CAAF.  

  2. Broseph says:

    Dwight,

    CAAF was created legislatively very similar to agency adjudication, so it retains party restrictions akin to the National Labor Relations Board.  But ultimately it doesn’t really matter, as it’s not hard to find someone who is registered as a (pick your party) but who still suits the administration’s needs.

  3. Publius-Publicola says:

    Prior to 1990, there was no restriction on retirees (reserve or active) from serving.  You just had to be chosen from civil life.  And the court seemed to function fine.  I question why a retired reserve service person can now serve and yet a retired regular service person cannot.  What is the difference between the two?  If the point of the statute is to keep prior service persons from serving (presumably because they have some sort of service-created bias), then the statute should prohibit anyone who has ever served in the military from serving as a CAAF judge.  That would ensure true civilian oversight.  I agree with Dwight that the statute should be changed – allowing any prior serviceman to be chosen after a 7 year cooling off period.  The political designation should be removed.  And, in light of the limited case load, I also believe that the number of judges on the court should be changed back to the original number – three.   

  4. stewie says:

    For the immediate future, it feels like we won’t have to worry about Romney facing the difficult task of picking a judge from another party given the current state of play politically.

  5. Mike "No Man" Navarre says:

    Always good to see DHS’s annual plug for repeal of Art. 142(b) (see prior pleas here and here)–which are starting to sound like the sound of one hand clapping.  I note another side-effect, they eliminate from the pool of candidates all of those potential CAAF jurists who are not a member of one of the 2 dominant political parties–though that probably disqualifies them from being nominated as anything else either. 

  6. Cap'n Crunch says:

    I personally believe, like Mr. Gittens, that former CCA judges, and, for that matter, and military retiree, is inappropriate to sit on CAAF.  It is about 3 things in my mind: 1) 20 years of conforming to government expectations (and after all, think about who is paying that retirement check) creates a pretty high hill for an accused/defendant to overcome; 2) If you look, statistically, at who sits on the CCAs (and for that matter, the senior JAGs in general), you get company men, which is what you want to prevent in a fair minded jurist; and 3) I think there is also a perception of fairness issue — even if you get a fair, even handed jurist (and we have named a few), institutational credibility by preventing career military members from serving on CAAF has a public perception effect that is worthwhile in keeping the rule.

    As for the not more than 3 from any party rule… I suppose the intent of that is to keep a balanced political view on those few cases that involve political philosophy.  I don’t see, however, the real benefit to this rule.  It isn’t akin to labor relations where politics really drive results… 

  7. Socrates says:

    I suppose a Libertarian CAAF judge is not a possibilty?  Too bad.  That would make some interesting jurisprudence.  I think the Republican/Democratic split in CAAF seats is good for public perception of fairness – akin to the test for implied bias for trial members.