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Opinion Analysis: United States v. Vazquez, No. 12-5002/AF

Whether you consider “military due process” to be more like a bear or a zombie, CAAF’s opinion in United States v. Vazquez, No. 12-5002/AF, 72 M.J. 13, makes it clear that there is no such animal:

the AFCCA mistakenly relied on the concept of “military due process,” an amorphous concept as used by the AFCCA that appears to suggest that servicemembers enjoy due process protections above and beyond the panoply of rights provided to them by the plain text of the Constitution, the UCMJ, and the MCM. They do not.

Vazquez, slip op. at 15. Judge Ryan writes for the majority, with Chief Judge Baker and Judge Stucky each writing separate concurring opinions.

The case involves a general court-martial conviction for aggravated sexual contact with a child under the age of 12. The alleged victim (who was 4 or 5 at the time of trial) testified by remote means during the trial, and four other government witnesses also testified, before one of the members realized that the father, whom he had seen in the witness waiting area, was one of his subordinates in the rating chain. The member was excused, but this reduced the panel to four members; below the quorum of five required for a general court-martial. Five additional members were detailed by the Convening Authority and, after voir dire, two were added to the panel. A verbatim transcript of the proceedings up to that point was produced and read to the two new members (in accordance with Rule for Courts-Martial 805(d)(1)).

There was no objection from the defense, but in a published opinion the Air Force CCA set aside the findings and dismissed the charge. United States v. Vazquez, 71 M.J. 543 (A.F.C.C.A. 2012) (Vazquez I). The court’s action was predicated on it finding “a violation of the appellant’s military due process rights” which the court found “per se prejudicial and mandate reversal of the appellant’s conviction.” Vazquez I, 71 M.J. at 552 (emphasis added).

Not so fast, says Judge Ryan:

The AFCCA was required, given the absence of any objection at trial, to conduct plain error analysis and identify the specific prejudice to a substantial right of Appellee. Its determination that reversal was required because “military due process” was violated, without more, was, quite simply, incorrect.

Vazquez, slip op. at 7-8. Judge Ryan then begins a plain-error analysis of whether the procedures in Article 29(b) and Rule for Courts-Martial 805(d)(1) are unconstitutional as-applied to the Appellee. She finds that they are not, and that the military judge did not err, because:

First, the AFCCA relied on the concept of “military due process,” and there is no such thing. Slip op. at 15.

Second, Congress specifically authorized the procedure used in this case, and while the military judge had numerous options available at trial (such as recalling witnesses or declaring a mistrial), “Appellee’s acquiescence and complicity in every aspect of the procedures used did not create a record upon which to support an as-applied challenge. Nor did they afford the military judge either a reason to declare a mistrial or a reason or opportunity to craft alternative procedures short of a mistrial, such as recalling witnesses.” Slip op. at 16.

Third, “Appellee has further failed to show, either at trial or before this Court, how the members in his case were either actually unfair or appeared to be unfair.” Slip op. at 17. Moreover, the AFCCA’s conclusion that the right to a “‘jury’ . . . must include, at a minimum, having the same jury present for the entire trial” (Slip op. at 18 (quoting Vazquez I, 71 M.J. at 549)) is “directly contrary to Article 29(b), UCMJ . . . [and] the AFCCA provides no relevant authority in support of its bald assertions and fails to explain how Article 29(b), UCMJ, could even be facially constitutional if either of their assertions was correct.” Slip op. at 18.

Fourth, the concerns of the Confrontation Clause were adequately addressed by the procedure employed at trial, and Judge Ryan writes that “we note that absent a defense objection.” Slip op. 20. This is a recurring theme of the opinion.

Finally, perhaps as an emphasis to this theme, she concludes:

While a case could exist where Article 29(b), UCMJ, would be unconstitutional as applied, Appellee has not met the burden of showing that it is his case.

Judge Ryan’s analysis relies heavily on the Supreme Court’s highly-deferential consideration of the statutory scheme created by Congress for military judges (who were challenged in part due to the lack of fixed terms of appointment) in Weiss v. United States, 510 U.S. 163 (1994). “In this context, the Supreme Court held that a petitioner’s rights were violated only if ‘the factors militating in favor of [the petitioner’s interest] are so extraordinarily weighty as to overcome the balance struck by Congress.’” Vazquez II, slip op. at 13 (quoting Weiss, 510 U.S. at 177-78). A footnote further explains that “absent an argument that the statutory scheme is facially unconstitutional, or an accused demonstrating that it is unconstitutional as applied to him, we presume that the statutory scheme established by Congress and implemented by the President constitutes both the parameters of what process is due and a fair trial in the military context.” Vazquez II, slip op at 13 N.3.

The concurring opinions take no issue with this analysis, making the words “military due process” a big red flag for practitioners, and setting a high bar for future challenges to the procedures for handing replacement members.

Chief Judge Baker’s concurring opinion discusses his conclusion that the military judge did err by failing to inquire if the parties wanted a mistrial. Specifically, he finds that the military judge should have presented the parties with three options:

In my view, the military judge in this trial had a duty to inquire of the parties whether they wanted to proceed with a mistrial, recall the Government witnesses who had already testified, or proceed with the application of R.C.M. 805(d) and Article 29, UCMJ.

Baker, C.J. con. op. at 4. He sees this error as forfeited (by the failure of the defense to object), tests for plain error, and finds that “Appellee has failed to carry this burden for the same reasons the record fails to establish a violation of his right to a fair trial.” Id. at 6.

Judge Stucky’s concurring opinion makes “no disagreement whatsoever with the majority concerning the merits of this case.” Stucky, J. con. op. at 1. But he finds that the Appellee waived this issue:

In this case, the military judge offered Appellee several opportunities to object to the procedure for replacing court members and reading a transcript of the previously given testimony to the new members. Appellee did not merely forfeit this issue by not objecting, such that we would apply plain error; he affirmatively declined to object to any aspect of the procedure. Under these circumstances, I conclude he waived appellate review of this issue.

Id. at 2.

For those who (used to) use the term “military due process,” Vazquez is a seminal opinion. For the rest of us, its just business as usual.

Case Links:
AFCCA oral argument audio
AFCCA opinion (published) (corrected opinion)
Blog post: Significant published AFCCA decision
AFCCA order denying habeas relief
Blog post: JAG certifies two issues
Appellant’s (Government) brief
Appellee’s brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: In the CAAF
Blog post: U.S. v. Vazquez smashes a zombie’s skull
Blog post: Opinion analysis

U.S. v. Vazquez smashes a zombie’s skull

We’ve previously reviewed how to kill a zombie:  with a sharp blow to the head.  Until last year, it wouldn’t have even occurred to us that there was a military due process zombie that needed killing; no such zombie had been seen lurching about since bell bottoms were in style and Starsky and Hutch were driving around in their striped Torino.  Then came Untied States v. Vazquez, 71 M.J. 543 (A.F. Ct. Crim. App. 2012), and it was as if zombie Paul Michael Glaser was back in the driver’s seat.  But today’s Vazquez opinion to bludgeoned the zombie’s noggin:

AFCCA mistakenly relied on the concept of “military due process,” an amorphous concept as used by the AFCCA that appears to suggest that servicemembers enjoy due process protections above and beyond the panoply of rights provided to them by the plain text of the Constitution, the UCMJ, and the MCM. They do not.

Vazquez, No. 12-5002/AF, slip op. at 15.  Thwack!  There is no freestanding concept of miltary due process that allows judges to create rights not established by the Constitution, a statute, or a regulation.  Kabong!  One dead zombie legal theory.  I don’t think it will be getting up again.

End of CAAF’s term delayed by end of pregnancy term

As noted yesterday, CAAF’s oral argument in United States v. Martinez, No. 11-0167/AR, was postponed due to the arrived of a newborn for one of the counsel in the case.  The argument has been rescheduled for 1100 on Tuesday, 24 May.  I hope that the counsel will have recovered from his sleep-deprived state by then; I felt like a zombie for at least the first couple of months after my daughter was born.

So today’s End of Term reception at CAAF didn’t mark the end of CAAF’s term, but did mark the end of a pregnancy term. 

I believe that the End of Term reception traces its roots to BGen Kevin H. Winters, USMC (Ret.), who hosted a CAAF End of Term reception at the Navy Yard upon what was scheduled to be the end of oral argument season in CAAF’s 2002-2003 term.  And as occurred this year, CAAF ended up scheduling another oral argument after the End of Term reception.  History repeats itself.

CGCCA’s online opinions updated

The Court-Martial Trial Practice blog notes that the Coast Guard Court’s web site has now been updated to include the court’s 2009 opinions. (Our best guess is that the court was waiting for the Chinese New Year to start posting 2009 opinions. BTW, we are now in the Year of the Ox.)

We previously noted CGCCA’s Jonsson opinion–an extremely interesting decision setting aside an adultery conviction. We now know that it will be published.

The Coast Guard Court’s updated web site also posts a new authored opinion issued on 5 February 2009. United States v. Kasprzyk, Dkt. No. 1287 (C.G. Ct. Crim. App. Feb. 5, 2009). The opinion doesn’t make it apparent whether it will be published. The case involves fairly uncontroversial discussions of the law governing conspiracy (there need not be an express agreement) and sentence comparisons. The opinion then delivers another blow to the head of the Swiderski zombie.

Supreme Court filings focus on military death penalty system

As discussed in this highly informative piece on SCOTUSblog, lawyers for Patrick Kennedy and the Acting SG filed the briefs today that the Supreme Court requested in Kennedy v. Louisiana to address whether the Supremes should rehear the case. Of course, the Acting SG said yes and Kennedy’s lawyers said no. SCOTUSblog provides a great analysis of the implications of this for the Kennedy case itself. I’m more interested in the briefs’ treatment of military law.

Kennedy’s brief displayed unfamiliarity with the military justice system. Any number of military justice experts would have made themselves available to help Kennedy’s counsel, but it’s clear that no such assistance was accepted. Since petitioner’s counsel knew that the Acting SG’s brief would be prepared with the assistance of the DoD General Counsel’s office — and, in fact, two highly distinguished retired judge advocates had signed onto the Acting SG’s previous motion for leave to file a brief in support of rehearing before also signing onto today’s brief from the Acting SG — why wouldn’t petitioner’s team have sought out reinforcements to keep from being outgunned on the military justice flank? For whatever reason, they didn’t and it shows.

What is probably the most significant problem arises in the petitioner’s brief’s desuetude argument. The petitioner argues at one point that “[t]he military, to our knowledge, has not sought to impose the death penalty for rape in over forty years.” Petitioner’s Brief in Opposition at 3. The brief later argues, “The military last executed someone for rape in 1961, and it apparently has not even sought – let alone obtained – such a sentence since.” Id. at 7-8. Wrong. As a published CAAF decision makes clear, the Navy sought the death penalty in a court-martial of a petty officer for rape and attempted murder in 1989. United States v. Straight, 42 M.J. 244, 247 (C.A.A.F. 1995). But because the members’ finding of guilty to the death-eligible offense was not unanimous, id., death was no longer an authorized sentence after findings. Given that this information is available in a published opinion and was mentioned in a law review article published two years ago, see 189 Mil. L. Rev. 1, 13 n.45, it’s surprising that petitioner’s brief would make such a major mistake.

That large mistake is immediately followed by a smaller one. The brief states, “There are currently nine people on the military’s death row; all nine committed premeditated murder or felony murder.” Petitioner’s Brief in Opposition at 8. Again, wrong. If we are using “death row” to refer to a physical place in the United States Disciplinary Barracks, there are currently four men there. If we are using “the military’s death row” to refer metaphorically to the number of servicemembers currently under a death sentence, then the actual number is five. (One person, Kenneth Parker, is under a military death sentence but is currently confined at Camp Lejeune.) Nine is the number of servicemembers currently under death sentences plus the number of servicemembers whose death sentences have been overturned but who might still be resentenced to death. The phrase “currently . . . on the military’s death row” isn’t descriptive of that more nuanced concept. It would have been easy to provide a completely accurate and more helpful statistic: all 15 servicemembers sentenced to death under the current military death penalty system were convicted of premeditated murder, felony murder, or both. No doubt had the petitioner’s counsel consulted with a military justice expert, he or she would have steered them clear of such inaccuracies.

But wait; there’s more. The brief seems to make a fairly major mischaracterization when it contends that “[t]he President’s reaffirmation of death as a permissible punishment appears within the 800-plus-page Manual for Courts-Martial.” Petitioner’s Brief in Opposition at 9. Almost any military justice practitioner could have told petitioner’s counsel that that’s wrong. President Bush didn’t reissue the MCM in toto in September 2007 with the rape amendments interspersed among more than 900 other pages of text. Rather, he issued an Executive Order with an annex that takes up 23 MCM pages that was devoted almost entirely to the new military rape statute. Especially since Congress had expressly authorized the President to choose whether to discontinue death as an authorized punishment for rape or rape of a child, the presidentially prescribed death penalty provision wasn’t a needle in a haystack; it was a pitchfork in a hay bale.

The brief also features what seems to be an analytic lapse. The brief posits: “The important point for present purposes, however, is that this Court in Kennedy asked the right question – namely, whether petitioner is subject to the death penalty under federal law – and gave the right answer: he is not. Nothing more was, or is, required.” Petitioner’s Brief in Opposition at 7. But is that really what the Supremes do when they engage in jurisdictional nose counting? The question isn’t whether Patrick Kennedy is subject to the death penalty under, say, Maryland law; he isn’t — not only because Maryland doesn’t authorize a death sentence for rape of a child but also because Maryland has no jurisdiction over Patrick Kennedy’s offenses. So the jurisdictional nose counting process doesn’t ask how many jurisdictions can actually execute Patrick Kennedy for the particular offenses of which he was convicted; rather, it asks how many jurisdictions could execute someone who committed comparable offenses within that jurisdiction.

The brief suffers from minor problems as well, such as referring to the National Defense Authorization Act as an “appropriations bill,” id. at 9, listing Article 120 of the UCMJ as a “Federal Rule” rather than a “Statutory Provision,” id. at iv-v, and calling ¶45.f.(1) of Part IV of the MCM “Article 120(f)(1).” Id. at 3, 9 n.5. Again, had petitioner’s counsel consulted with any competent military justice litigator, those would have been cleaned up.

Finally, the brief drops a footnote advancing what seems to be an untenable argument. Footnote 5 questions “whether the President’s continuation in Article 120(f)(1) [sic] of the Manual for Courts-Martial of the possibility of punishing rape with the death penalty is sufficient to authorize such punishment. The Uniform Code of Military Justice (UCMJ) provides that a court-martial may impose capital punishment only when ‘the penalty of death [is] specifically authorized by this chapter.’ 10 U.S.C. § 818 (emphasis added). Now that the NDAA has removed any reference to the death penalty from the UCMJ’s rape provisions, the UCMJ itself no longer ‘specifically authorize[s]‘ such punishment.” Id. at 9 n.5. That overlooks entirely the key provision in the National Defense Authorization Act for Fiscal Year 2006 that formed the basis for the rehearing petition. In that legislation, Congress stated:

Until the President otherwise provides pursuant to section 856 of title 10, United States Code (article 56 of the Uniform Code of Military Justice), the punishment which a court-martial may direct for an offense under section 920 of such title (article 120 of the Uniform Code of Military Justice), as amended by subsection (a), may not exceed the following limits:

(1) Subsections (a) and (b).– For an offense under subsection (a) (rape) or subsection (b) (rape of a child), death or such other punishment as a court-martial may direct.

National Defense Authorization Act for Fiscal Year 2006, § 552(b), 119 Stat. 3136, 3264 (2006).

Since the President has not provided otherwise, this express statutory authorization for the death penalty is in force. This provision isn’t trumped by Article 18; rather, to the extent that they are inconsistent the NDAA provision prevails over Article 18 because it is both the more specific and the more recent statute. See generally In re Northwest Airlines Corp., 483 F.3d 160, 168 (2d Cir. 2007).

By comparison, the Acting SG’s brief was uneventful. Its treatment of zombie statutes is a bit problematic. The SG writes that “in Coker, the plurality’s conclusion that capital punishment for the rape of an adult woman was unconstitutional accorded with Congress’s silence on the subject at that time. See 433 U.S. at 593-596.” Brief for the United States at 5. Of course, when the Supremes decided Coker v. Georgia in 1977, Article 120 of the UCMJ remained on the books with its provision that rape was punishable by death. The Acting SG attempts to escape from this inconvenient parallel to Kennedy by arguing: “In Coker, Congress was silent on the pertinent question because it had not reauthorized the death penalty for rape after this Court’s decision in Furman v. Georgia, 408 U.S. 238 (1972), which ‘invalidated most of the capital punishment statutes in this country, including the rape statutes.’ Coker, 433 U.S. at 593 (plurality opinion).” Id. at 5 n.2. He then concludes: “The Court thus has never held the death penalty unconstitutional for an offense for which Congress has authorized such punishment at the time of its decision.” Id. at 5-6. But at the time of Coker, Congress had authorized death as a punishment for rape and no court had held that Furman invalidated the military death penalty system, though Justice Blackmun had noted in his Furman dissent that the case “jeopard[izes], perhaps, . . . the death penalty provisions in various Articles of the Uniform Code of Military Justice.” Furman v. Georgia, 408 U.S. 238, 412 (1972) (Blackmun, J., dissenting). And, interestingly, the Supremes ultimately held that there was no necessity for congressional action to revive the military death penalty system post-Furman. See Loving v. United States, 517 U.S. 748 (1996).

The SG also seems to gild the lily by arguing that “Congress recently enacted legislation authorizing capital punishment for child rape by an overwhelming 374-to-41 vote in the House . . . and a voice vote in the Senate.” Brief for the United States at 6. While that is literally correct, it would be silly to suggest that 374 members of the House were endorsing Section 552(b) of the bill. It seems improbable that 374 members of the House even knew that Section 552(b) was in the bill.

The Acting SG’s brief also contains an ingenious argument that congressional legislation about the military justice system shouldn’t be excluded from jurisdictional nose-counting in part because such legislation now applies to some civilians in contingency operational areas. Id. at 7.

The next step in the case will be the filing of Louisiana’s reply brief, which is due by 1400 next Wednesday, 24 September. We’ll look at that brief once it’s filed. And then, SCOTUSblog tells us, the “Court is scheduled to consider the rehearing plea at its Conference on Monday, Sept. 29, the first of the new Term. That could mean some action might be known as early as Tuesday, Sept 30.”

Two new CCA published opinions: one dead zombie and one riddle solved

December has brought us warm weather and two new NMCCA published opinions. Both are in the LEXIS “CAAF and published CCA opinions” file, though (predictably) neither is on either NMCCA’s web site or WESTLAW.

A zombie is “killed” by a sharp blow to the head. In United States v. Tingler, __ M.J. ___, 2006 CCA LEXIS 329 (N-M. Ct. Crim. App. Dec. 14, 2006), the Navy-Marine Corps Court tries to kill the Swiderski zombie. In United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977), the Second Circuit held that two individuals who jointly obtain drugs are not guilty of distribution when they transfer the drugs between the two of them for their personal use. Military courts have so marginalized Swiderski that a sharp blow to its head seems hardly necessary. But, when dealing with the undead, it pays to be safe. The Navy-Marine Corps Court observed, “The validity of the Swiderski reasoning is in considerable doubt among the federal circuits. ‘No other circuit has followed the Second Circuit in Swiderski.’ United States v. Washington, 41 F.3d 917, 920 n.2 (4th Cir. 1994).” Tingler, 2006 CCA LEXIS 329, at *12. Bash! “We hold that sharing an illegal drug between two servicemembers is distribution and not ‘personal use.’ We expressly reject Swiderski‘s applicability to drug offenses alleged under the UCMJ.” Id. Wham! “Assuming arguendo that Swiderski does apply to military courts-martial, we are confident that it does not control the appellant’s case because it is factually distinguishable . . . .” Id. at *12-*13. Pow! Okay, Judge Carver, you can stop hitting it with the shovel – I think it’s really dead now. But wait! There’s more! “Even if the Swiderski holding is inapplicable or distinguishable, can the appellant be convicted of distribution of cocaine by sharing cocaine with FA Robbins after FA Robbins originally provided the cocaine to the appellant?” Id. at *18. Of course he can. Finally, NMCCA declined to give relief even though it had to send the case back to the CA for a new action TWICE, because the first time it was sent back to the CA, his action contained the same ambiguity as the original action. Blam! Wow, I hope that Moreno doesn’t turn into a zombie!

In Unites States v. Pflueger, __ M.J. ___, 2006 CCA LEXIS 328 (N-M. Ct. Crim. App. Dec. 5, 2006), NMCCA solves that age-old riddle: is there a practical difference between remission of a BCD and appellate disapproval of a BCD? NMCCA tells us that the answer is yes, with the latter being more favorable to the accused. (NMCCA’s solving of this riddle is bad news for the Columbus Clipper, who had planned to pass many a Kabul night by pondering this very question. Sorry, Marcus, looks like you’ll have to buy a few extra Sudoku books.) CAAF had remanded Pflueger to NMCCA to answer a series of questions concerning the practical effect of a remitted BCD. United States v. Pflueger, 61 M.J. 272 (C.A.A.F. 2005) (summary disposition). NMCCA explained that “[b]ecause the punitive discharge remained part of the adjudged and approved sentence after it was remitted, it continued to qualify the appellant for automatic forfeitures until it was disapproved in our decision of 30 July 2004.” Pflueger, 2006 CCA LEXIS 328, at *5-*6. The disapproval of the BCD, on the other hand, entitled the accused “to repayment of all amounts that were taken from his pay as a result of automatic forfeitures.” Id. at *8. Accordingly, NMCCA concluded, an appellate decision declining to affirm a BCD that has already been automatically remitted provides meaningful relief to the accused. Kablouie! Whoops — I thought I saw a zombie.

–Dwight Sullivan

We spend $69.99 for a bad book about CAAF nominees’ confirmations so you don’t have to

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.

–Dwight Sullivan