tag:blogger.com,1999:blog-34853720.post3411909862508939393..comments2023-08-24T10:39:23.460-04:00Comments on CAAFlog: Considering H.R. 3174Dwight Sullivanhttp://www.blogger.com/profile/11657981110237418710noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-34853720.post-64256971164099939092007-08-23T09:17:00.000-04:002007-08-23T09:17:00.000-04:00I guess it depends on your definition of "short te...I guess it depends on your definition of "short term." My point is that, merits aside, an expansion of SCOTUS's cert jurisdiction would last FOREVER. Forever = Long Term. Viewed in that lens, I see the next twenty years as the short term effects of such an expansion on the path of military justice. Again, I'm expressing no view on the merits of the bill itself, just saying that the overall effect of such a bill on how prosecution-oriented or defense-oriented military justice becomes really can't be known.<BR/><BR/>I also wonder how the Court's view of military justice matters will change -- even if the Court remains fairly conservative -- with Chief Justice Rehnquist off the Court. To the outside observer, he certainly appears to be the moving force in the jurisprudential march from O'Callahan to Clinton v. Goldsmith.John O'Connorhttps://www.blogger.com/profile/08014476389355562158noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-5765139986789658652007-08-23T00:28:00.000-04:002007-08-23T00:28:00.000-04:00How is CAAFlog's view a short term view? The most...How is CAAFlog's view a short term view? The most likely candidates for retirement from the Supreme Court in the near future are all liberal appointees. Stevens is the oldest at 87, and Ginsburg is 74 (though when I found that fact I was surprised). Scalia and Kennedy are 71, but neither appears to be slowing down. At least for the next decade, or two, we can probably count on a relatively conservative court. Considering the sea changes we have seen in the first year of this new court I would expect more of the same next year. Stare decisis just doesn't get you 17 years of Pax Burger/Rehnquist anymore. It's more like 17 years of Justice Kennedy majority opinions (5-4 opinions).Mike "No Man" Navarrehttps://www.blogger.com/profile/11434921480452541955noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-79287953303094305112007-08-22T20:53:00.000-04:002007-08-22T20:53:00.000-04:00Understood. But your view of the probable outcome...Understood. But your view of the probable outcome is an exceedingly short-term view, one entirely dependent on the identity of the current justices. As for the longer-term probable effect on the law from an increase in cert availability for accuseds, I say the answer is "who knows."<BR/><BR/>I do agree, though, that the overall likely effect would be "not much," unless a collection of justices decided to revolutionize military justice by taking a bunch of cases.<BR/><BR/>Oh, and Army DAD would have a field day filing all those cert petitions they've been prevented from filing by CAAF's failure to grant review.John O'Connorhttps://www.blogger.com/profile/08014476389355562158noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-46172495358389485132007-08-22T20:45:00.000-04:002007-08-22T20:45:00.000-04:00JO'C,I'm certainly not arguing that the bill shoul...JO'C,<BR/><BR/>I'm certainly not arguing that the bill should be supported on the basis that it may move the law in a pro-prosecution direction. (If anything, I would oppose the bill on that basis.) I support the bill as a matter of principle. But it is interesting to speculate about the probable outcome of the bill -- and the probable outcome (at least for the foreseeable future) is either zero or pro-prosecution.Dwight Sullivanhttps://www.blogger.com/profile/11657981110237418710noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-46232649408580158132007-08-22T20:35:00.000-04:002007-08-22T20:35:00.000-04:00It's an ironic argument that giving accused's a ch...It's an ironic argument that giving accused's a chance to appeal more cases is likely to improve the law for the prosecution because the Supremes are likely to take cases the government won at CAAF and say that the CAAF didn't go far enough.<BR/><BR/>The merits of the bill aside, I don't buy your premise that the likely outcome would be more favorable law for the prosecution. The bill, if enacted, would be a durable change in the law, and the composition of the Supreme Court is a temporary thing. So basing a permanent change on the likely views of the current Justices seems an exceptionally unwise proposition.<BR/><BR/>Who knows, we might in the near future have a Supreme Court closer in philosophy to the Warren Court that issues O'Callahan v. Parker than to the Court that decided Clinton v. Goldsmith. Whether that would be a good thing or a bad thing, I don't think anyone would be well advised to make a decision on the Court's cert jurisdiction for time immemorial based on what they think the nine current Justices would do with cases.John O'Connorhttps://www.blogger.com/profile/08014476389355562158noreply@blogger.com