Article 142’s unwise limitations on the President’s discretion to pick the best possible CAAF judges
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.