Monday, October 01, 2007

Busy news day

Today was a busy news day, with the release of the Supreme Court's long conference order list, the start of CAAF's term, the posting of a published Navy-Marine Corps Court case, and more. So I will be making a series of posts tonight. But let's start on a whimsical note. One of the best turned phrases of last term was Judge Baker's reference to "the recently hirsute Appellant" in a case where the accused shaved all the hair from his body in an apparent effort to avoid drug detection (it didn't work). United States v. Moran, 65 M.J. 178, 184 (C.A.A.F. 2007). Now CAAF has a newly hirsute judge. I wasn't able to make it to CAAF today for the Denedo argument. So I called up a few people who were there to see how it went. Here's roughly how the conversations went:

Me: Hey, how did the Denedo argument go?
Anonymous source: Judge Erdmann had a goatee!
Me: Really? How did the argument go?
Anonymous source: And a mustache!
Me: Really? How did the argument go?
Anonymous source: Oh, they were a hot bench and seemed to focus on the jurisdictional question, and did I mention that Judge Erdmann had a goatee?


John O'Connor said...

See, and Christopher Mathews told me to just wait for the audio file. How am I going to hear a goatee and mustache from an audio file?

John O'Connor said...

I just listened to oral argyument in Denedo. While it's inherently dicey to predict an outcome based on the tenor of oral argument, I didn't hear three votes for the exercise of writ jurisdiction here. My suspicion is that the court will dismiss the writ petition, with the real issue being whether the court does so without prejudice so that Denedo can come back if an Article III court finds that it lacks jurisdiction over the petition.

Of course, in my mind, that proposition has it exactly backwards, as the CAAF (with its very narrow jurisdiction) should not be the residuum court, the one that will exercise jurisdiction if another court won't. I believe that an Article III court would have jurisdiction over the writ and, again in my mind, the CAAF has no place expanding its own powers if, for whatever reason, an Article III court erroneously concludes that it lacks jurisdiction.