Friday, May 04, 2007

Will 3-2 be the new 4-1?

CAAF's recent opinion in Adcock is the first decision in which the two new Judges join in dissent from the 3 longer sitting colleagues. Does this hearken back to the days of the 4-1 decision? I predict not. Why? The "Erdmann-factor."

Judge Erdmann was nominated to the Court by President Bush on August 1, 2002 and confirmed on October 8, 2002. As a Conservative for judicial reform (around the globe), Montana jurist, and former judge advocate, he was a relatively conservative voice when he was nominated to the Court. After his confirmation, Judge Erdmann quickly joined his Clinton appointee brethren in "supervisory" decisions such as Diaz and Brunson (notably even Judge Crawford agreed with those opinions, or at least did not dissent) . By the end of the term he was writing opinions or concurring with Judge Baker in setting out supervisory limitations on the system and giving guidance to military judges, e.g. O'Connor (a providence inquiry case enforcing the S. Ct.'s decision in Ashcroft v. Free Speech Coalition) and King (concurring with Judge Baker that Judge Crawford's opinion on waiver of confinement credit was wrong).

The transformation was not akin to Justice Blackmun's memorable dissent from denial of cert. in Callins v. Collins, "From this day forward, I no longer shall tinker with the machinery of death." But, it was certainly unexpected from the standpoint of those that only knew Judge Erdmann was a conservative judicial voice. I think the two new Judges will likely take their place on the Court and realize that CAAF's role is wholly different than the role of any other federal appellate court, Art. I or Art. III. It's not the 4th Cir., definitely not the 9th Cir., not the Court of Federal Claims, and definitely not a state appellate court. CAAF has its very own place in an imperfect system trying to teach the ever changing players in the system the right way to go about carrying out their duties in a just and fair manner, in compliance with the rules and regulations that attempt to provide service members a fair trial. Let's see how Adcock is decided three years from now.


John O'Connor said...

Yikes, No Man! Boiled down, aren't you really saying that you predict that experience on the court will lead the two new judges to cast aside that pesky statutory jurisdiction and join the club in exercising "supervisory authority" over all aspects of the military justice system? Clinton v. Goldsmith, here we come again.

Mike "No Man" Navarre said...

Supervisory powers? What is that exactly I have always asked? First, Congress has never objected to the following statement now contained in the appendix to Title 10 of the United States Code, "The Court acts only with respect to the findings and sentence as approved by reviewing authorities, and as affirmed or set aside as incorrect in law by a Court of Criminal Appeals, except insofar as it may take action on a certificate for review or a petition for review of a decision by a Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, 10 USC § 862 (1983), or to grant extraordinary relief in aid of its jurisdiction, including the exercise of its supervisory powers over the administration of the Uniform Code of Military Justice." That would seem to indicate something more than just granted or denied. Second, what exactly does Art. 67 mean when it says "The Court of Appeals for the Armed Forces shall review the record . . ." The only limit on that review is that the case can only get to the Court in a specified manner and the Court may only act "with respect to amtters of law." Does the 4th Cir. have to review the record? I would say no, in fact in most cases the parties assemble an agreed upon joint appendix. It seems to me that even CAAF's statutory jurisdiction is broader than almost any other appellate court.

John O'Connor said...

Wow. No Man, you are quite the judicial imperialist -- you had me going with that hooey the other day about having some appellate government sympathies (wink). If CAAF is required to review the record, I guess that means that can do anything they want with respect to that record. Somebody should tell this to Goldsmith, he's entitled to be put back on the rolls.

I was intrigued by your reference to the persuasive weight of an "appendix to Title 10 of the United States Code," which you submit permits a more expansive jurisdiction for CAAF, and the fact that Congress has not objected to this appendix. I was surprised to see that this "appendix" (if I'm right about what you are referring to) is actually the CAAF local rules, and Rule 5 in particular. It's an odd argument that Congress must now "object" to a court of limited jurisdiction's conception of its own powers or else Congtress must have intended exactly the jurisdiction the inferior court would grant itself. I thought jurisdiction had to flow from a "law," you know something that was actually passed by both houses and signed by the President, and not the failure of the legislative branch to object to a court's usurpation of jurisdiction not conferred.

Mike "No Man" Navarre said...

The last time I checked, congressional silence was still a valid canon of statutory construction, even one that Justice Scalia believed once existed, see Burns v. United States, 501 U.S. 129 (1991) (op. of Marshall, Scalia joining). Further, isn't the premise of Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 866 (1984) that congressional silence means the legislature intended to delegate and entrust the agency with the authority to interpret the statute on the point that Congress remained silent?

John O'Connor said...

But Congress HAS legislated on the proper jurisdiction of CAAF.

I guess it's the difference between whether you think a court of limited jurisdiction should start by asking why it has authority to take on a particular issue, and a court that begins by asking why it shouldn't tackle a particular issue. I think the former is the better approach.