Thursday, September 28, 2006

Lane cert cont'

Jason Grover (the Super Muppet of Appellate Advocacy) and I have been having a running debate over whether the Supremes will review CAAF's Lane decision. Lane ruled that because of Article I's Incompatibility Clause, a sitting Member of Congress (Senator Lindsey Graham, R.-S.C.) may not serve as an Air Force Court of Criminal Appeals judge. I think the Supreme Court will review the case; Grover thinks not.

Here is an interesting passage from the Congressional Research Service's invaluable The Constitution of the United States of America. ("Interesting" in this context, of course, means "supports my position.")

One of the more recurrent problems which Congress has had with [the Incompatibility] clause is the compatibility of congressional office with service as an officer of some military organization -- militia, reserves, and the like. Members have been unseated for accepting appointment to military office during their terms of congressional office, but there are apparently no instances in which a Member-elect has been excluded for this
reason. Because of the difficulty of successfully claiming standing, the issue has never been a litigatible matter.

Congressional Research Service, The Constitution of the United States of America, Analysis and Interpretation 135 (1996) (footnotes omitted) (emphasis added).

So we have a really interesting constitutional issue dealing with the interpretation of a provision that is hard to reach. The Lane case presents about the best possible claim for standing. If the Solicitor General seeks cert in this case, bet on a grant. The Solicitor General's certiorari success rate has historically been about 70%, compared to about 5% for everyone else. Rebecca Mae Salokar, The Solicitor General: The Politics of Law 25 (1992) (between 1959 and 1989, the Solicitor General was successful in obtaining plenary review 69.78% of the time, whereas private litigants were successful only 4.9% of the time).

--Dwight Sullivan


Mary Hall said...

In one of her 2004 Con Law texts, Prof. Lee Epstein puts the number of grants in cases where the fed govt is the petitioning party at 70-80%. It's good to be the king . . .

Marcus Fulton said...

It's still a day early to give out the end-of-term awards (The Golden CAAFs?). But my nomination for Most Cert-Worthy Opinion in a Non-Capital Case has to be Kisala/Rose. Even though the potential petitioner only has a 3% chance of getting a grant, I put the chance of this administration wanting to do Senator Graham a favor at something less than that.
At the outset, I should disclose that I was LCpl Rose's attorney before the lower court, so I'm a partisan. But I found the opinion's heavy reliance on presumptions in favor of agency determinations (one of them even post hoc) to be pretty thin gruel. The most compelling argument that the vaccine is an IND is that there remains an active IND application on the vaccine for purposes of inhalational anthrax, a fact that renders the vaccine an IND by the FDA's own definition. Although the opinion mentions the pending IND application, it ignores the legal significance of it under the FDA's rules.
Of course, just because an opinion is (in my view) inadequate or disappointing doesn't make it cert-worthy. But the opinion does conflict more or less with the DC Circuit, and I think the QP that could be crafted out of Kisala would make even the most sleepy clerk turn the page; something along the lines of "May the military perform illegal medical experiments on the sons and daughters of America?" Well it’s a start. We’ve only had five years to craft this one. While the narrow questions of whether Anthrax is an IND does not affect more than a dozen or so appellants at this point, the rationale of Kisala subjects over million active-duty service members to a significant diminution in their personal autonomy. I think a well crafted cert petition would covertly play to the residue of mistrust left by earlier disgraces such as the Tuskegee syphilis experiments and the like.
So I think you’re both wrong. The Golden CAAF goes to Kisala

Jason Grover said...

Marcus forgets the three pending cert petitions, McKeel, Magyari, and Quintanilla. And in McKeel, the Supreme Court requested a response to the cert. petition from the government. (

I don't know if any of those qualify as the most "cert-worthy opinions," but we can't leave them out of the nominations.

And it would be wrong to leave out the Rolando Sanchez combined post-trial delay Toohey petition. . . .

Dwight Sullivan said...

The Supremes denied cert in Magyari on 2 Oct.