Weiss v. United States – Oral Argument – November 03, 1993

Media for Weiss v. United States

Audio Transcription for Opinion Announcement – January 19, 1994 in Weiss v. United States

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William H. Rehnquist:

We’ll hear argument first this morning in No. 92-1482, Eric Weiss v. the United States.

Mr. Morrison.

Alan B. Morrison:

Mr. Chief Justice, and may it please the Court:

The first question before the Court today is whether the method by which military trial and appeals judges are appointed is consistent with the Appointments Clause of the Constitution.

All of the judges in petitioners’–

Harry A. Blackmun:

Mr. Morrison, how does it happen to come up so late, rather than back in 1970, for instance?

Alan B. Morrison:

–Your Honor, I think that the answer is that this Court’s decision in Freytag in 1991 caused a recognition that the Appointments Clause had ramifications beyond what people had considered it before.

That is my understanding, Your Honor.

I was not there when the issue was first raised, but that is my understanding.

All of the judges in petitioners’ cases were commissioned officers.

All of them were appointed by the President with the advice and consent of the Senate.

But the commissions that they received were commissions as military officers and not as judicial officers, and the question presented is whether that appointment satisfies the Appointments Clause for their judicial positions.

William H. Rehnquist:

Well, are you distinguishing between commissions as military officers and commissions as Article III judicial officers?

Alan B. Morrison:

No, Your Honor.

I’m distinguishing… the question is whether, in order to fill the judicial offices which they hold as trial… military trial judges or military appeals judges, whether they have to receive a separate appointment under the Appointments Clause.

That is the question.

I recognize they do not have to be Article III judges.

There’s no question about that here.

William H. Rehnquist:

Well, so, then why do you use the term judicial… a commission as a judicial officer?

Is that a word of art?

Alan B. Morrison:

No.

I simply indicated, Your Honor, to fill the fill judicial office which… I thought I said judicial office, not officer, Your Honor, but the office which they hold.

And as Your Honor will note, in the addendum to our brief there are separate certificates appointing each of these persons to a judicial office, and that is why I use that particular term, Your Honor.

Anthony M. Kennedy:

But I had thought, Mr. Morrison, that when a JAG officer in the Army and the Navy, as opposed to the Marine Corps, is confirmed and appointed, he is appointed as a legal officer.

Alan B. Morrison:

That is correct.

It does not apply to the Marine Corps; it does apply to the Army and the Navy and the Air Force.

That narrows the group of people from all of the officers in the military down to about 1,650 officers who are law officers.

Of that, only 3 percent are either military trial judges or military appellate judges: 91 trial judges, and about 31 appeals judges.

Anthony M. Kennedy:

If your theory were to prevail, would those legal officers be assignable to nonlegal duties?

Alan B. Morrison:

I believe they now are in any event, Your Honor.

Anthony M. Kennedy:

Well, but under your theory you have to be appointed to a specific office.

Why isn’t a legal officer a specific office so that a legal officer could not, say, take a command position or an officer position in the combat unit?

Alan B. Morrison:

The principal reason, Your Honor, and this is the heart of our argument, is that under the Uniform Code of Military Justice only certain people, those who are appointed as judges, can perform the major functions that judges perform in the military: presiding over general and, in most cases, special court-martials; deciding on whether evidence will be admitted; ruling on challenges for cause; instructing the jury; ruling on matters of… other matters that come before such as preliminary motions.

And most important of all, only a military judge can decide in a special or general court-martial the guilt or innocence of the accused and can pass sentence.

Anthony M. Kennedy:

Well, I suppose only a military legal officer can advise with reference to a will or a divorce?

Alan B. Morrison:

I don’t know that, Your Honor.

Anthony M. Kennedy:

So under your theory, it seems to me, that a legal officer must be confined just to legal duties.

Under your theory.

Alan B. Morrison:

Your Honor, I don’t believe there’s any statute governing the military that restricts what legal officers can do.

In fact, Your Honor, I am advised that persons who have the legal officer designation do perform other legal duties, and no one, except the judges, performs judging duties.

No one other than the 31 members of the Courts of Military Review sit and decide the appeals that come to them with the quite extraordinary powers of appellate jurisdiction in the military.

David H. Souter:

Mr. Morrison, with respect to trial judges, however, would you go back and just help me out on a matter of fact?

You said a second ago… I think you said a second ago, in passing, that a military judge was indispensable to a finding of guilt or innocence.

Is that correct?

Alan B. Morrison:

No.

I said, Your Honor, that only a military trial judge sitting alone could find guilt or innocence.

David H. Souter:

I see.

Alan B. Morrison:

In special and general court-martials.

The Government points to the fact that in summary court-martials a nonjudge could sit, but this Court has held in Middendorf against Henry that those summary court-martials are not criminal proceedings.

In any event, are very different in terms of the punishment that–

David H. Souter:

Now, is it correct that with respect to the two higher grades of court-martial, a judge may not sit alone without the consent of the accused?

Is that right?

Alan B. Morrison:

–That is correct.

David H. Souter:

So that unless the–

Alan B. Morrison:

But not the consent of the Government.

David H. Souter:

–I’m sorry?

Alan B. Morrison:

But not the consent of the Government.

That’s not required.

David H. Souter:

But unless, though… unless the accused consents of the finding of guilt or innocence.

And I assume the determination of punishment would be made by a panel, only one of whom presumably would be a military judge.

Alan B. Morrison:

Except the last… I agree with it except the last part.

The military judge does not sit on that panel.

The judge is as a judge in the civilian court system, acting as a judge instructing the panel members.

In the… in the old days when we had law… when there were law officers in the military, the law officer would, in some cases, sit as an advisor.

But now the president of the court-martial is not the chief… is not the judge, and the judge does not vote on guilt or innocence unless the case is referred to the judge.

Which approximately… I don’t have the exact figures, but a very high percentage of cases are tried before military judges alone.

William H. Rehnquist:

So the members of the court, other than the law officer, who decide guilt or innocence would not, under your theory, have to be appointed specially under the Appointments Clause.

Alan B. Morrison:

That is correct, Your Honor.

In fact, in the military not only do officers serve on court-martials, but in limited circumstances enlisted personnel can serve on court martials.

There are a series of rules about that, but they are eligible.

And we would… we would contend that that is germane, in the Government’s phraseology, to other military duties, principally because there is no special qualifications.

Antonin Scalia:

Mr. Morrison, am I correct that your germaneness argument is not based on the notion that there is some inherent requirement that you cannot give a single person duties that are so… that are too diverse, but is rather based upon the notion that Congress has not chosen to give this person these sorts of duties?

In other words, it would be all right in your mind if Congress… if Congress said all military officers shall do the following duties, and then listed everything including the judicial officers.

Alan B. Morrison:

I would say that’s… that is substantially correct, Your Honor.

Antonin Scalia:

All right.

Now, is that–

Alan B. Morrison:

With two caveats… may I?

Two.

The first is that it isn’t simply that Congress hasn’t said they may do it.

The Congress has said the opposite.

It has said only those persons who are designated judges may perform the following functions.

Antonin Scalia:

–That’s correct.

Alan B. Morrison:

So it’s a little stronger than Your Honor hypothesized.

Antonin Scalia:

But Congress has also, has it not, made clear since 1968 that any person who is commissioned as an officer in the military forces runs a risk of becoming a judicial officer, may be designated a judicial officer.

So, certainly, once the ’68 statute was passed, anyone who received an officer’s commission knew that one of the duties of being an officer could be to be a judicial officer.

Isn’t that so?

Alan B. Morrison:

No, Your Honor.

Antonin Scalia:

Why–

Alan B. Morrison:

Under Article 26, only persons who are members of the bar can become a judicial officer, and they must also be certified by the Judge Advocate General of their service in order to become a judicial officer.

Antonin Scalia:

–But that’s fine.

Antonin Scalia:

But Congress certainly envisioned that any military… or you could also say there are certain requirements for other particular.

To be a medical officer, for example, of course you have to be a doctor.

Alan B. Morrison:

Yes.

Antonin Scalia:

But the fact is that Congress anticipated that the military commission would be enough to authorize that person to be a judicial officer, once the ’68 act was in effect.

Now, with respect to judicial officers before ’68, I can understand your relevance argument.

But surely there… are there any judicial officers functioning today who were commissioned prior to 1968?

I would doubt that.

Alan B. Morrison:

I do not know.

I do not believe so, Your Honor.

But there are probably officers who were commissioned prior to 1968 who are still serving as judicial officers, some of the most senior grades.

But, Your Honor, I think I’m not understanding your question, because it seemed to me to be rather the opposite.

That is, it seemed to me that until 1968 anyone might have served as a law officer because there were no special qualifications embodied in the Uniform Code of Military Justice, as there are now.

After 1968 a very narrow group of people is now even eligible in Congress’ view, that is those who are admitted to a bar.

And then they must, in addition, be certified by the Judge Advocate General before they can be law officers… because they can be judicial officers.

Ruth Bader Ginsburg:

Mr. Morrison, you say the only way this could be fixed is to have a fresh appointment in addition to the appointment that the officer already holds.

Is that so?

Or suppose Congress, having set this scheme up thinking it was an improvement over what existed before, wants to run it in the most efficient manner?

Is there any cure for the alleged defect that you are urging under the Appointments Clause, other than to have a fresh appointment for anyone who is going to serve as a legal officer?

Alan B. Morrison:

As a judicial officer, Your Honor?

Ruth Bader Ginsburg:

As a judicial officer.

Alan B. Morrison:

Yes, I would say… it’s almost in response to Justice Blackmun’s remark earlier about why this didn’t happen right after 1968.

I would say that if they went back to the 19… pre-1968 system, that there would be no Appointments Clause problem because people would not be serving in judicial offices because the functions were very different.

That is, the person who was a law officer was simply an advisor.

The court could disregard his or her–

Ruth Bader Ginsburg:

But apart from going back to the way it was, evidently Congress thought this was an improvement.

Alan B. Morrison:

–Yes, Your Honor.

I can’t think of any, but I wouldn’t want to exclude–

Ruth Bader Ginsburg:

So the only way that Congress could make it better is to have this double appointment, is that it?

Alan B. Morrison:

–Yes.

And I would say, Your Honor, it’s not a large matter because there are only 31 appeals judges and 91 trial judges who serve for periods of time, and the burden would be very minimal in order to comply with the Appointments Clause.

Antonin Scalia:

Mr. Morrison, I thought you gave me the opposite answer.

I thought you told me that there is no inherent disability for Congress defining an office so broadly that it could include becoming a judicial officer.

So certainly–

Alan B. Morrison:

Yes, I think–

Antonin Scalia:

–At least one other solution is for Congress to say, whenever a military officer is commissioned, that officer will be competent to become a judge under… under this 96… 1968 law.

So long as he has the other legal qualifications, you would acknowledge that that’s good enough.

Alan B. Morrison:

–So long as he has the other legal qualifications.

Antonin Scalia:

That’s right.

Alan B. Morrison:

And is a member of the bar.

Antonin Scalia:

Right.

Do you also assume–

–Couldn’t Congress–

Alan B. Morrison:

I think… I think that would be correct, Justice Scalia.

Antonin Scalia:

–Okay.

And my point is it seems to me Congress has done that.

It seems to me that once the 1968 act was passed, in effect that’s what Congress has said.

It’s right there on the statute books.

It’s clear that anybody who’s appointed as an officer can become a judicial officer so long as he has the legal qualifications.

It seems to me you’re… you’re really relying upon the technical fact that Congress did not write it all into one statute.

Alan B. Morrison:

I don’t think that that is the scheme that Congress has envisioned, and I perhaps answered your question too hastily.

It does seem to me that Congress has made it quite clear that it views the persons serving as judges as different from other military officers, both because they must all be members of the bar and because they all must be certified as qualified by the Judge Advocate General.

Anthony M. Kennedy:

But they can do that.

Of course, in the case of the Army and the Navy they are.

I–

Alan B. Morrison:

No, Your Honor, they’re not certified by the Judge Advocate General.

Anthony M. Kennedy:

–Not the latter.

Alan B. Morrison:

That’s a special procedure.

Anthony M. Kennedy:

Not the latter.

Alan B. Morrison:

And, Your Honor, it’s very important.

There are several instructions and regular procedures under which very few people, group of people, 3 percent of all persons in the military… military Judge Advocate General’s Corps become judges.

Alan B. Morrison:

And part of the reason is because most lawyers in the military do not participate in the criminal justice system.

Antonin Scalia:

I don’t understand your point.

Is your point that Congress cannot regard two functions as being very different and nonetheless by one commission authorize the same person to perform those two very different functions?

Alan B. Morrison:

I think I agree with Your Honor’s question.

Antonin Scalia:

Congress can’t do that?

Alan B. Morrison:

The breadth of it takes… makes me taken aback a little, but I think that that is correct.

Antonin Scalia:

Congress… what is correct?

Congress can do that.

It can say by this commission you will be a… authorized to be a Government physician and also to dig ditches for the Government, right?

Congress could do that if it wanted to.

Alan B. Morrison:

I think it could if it did so clearly, yes, Your Honor.

Antonin Scalia:

Well, so the only question is whether the 1968 legislation doesn’t do that… doesn’t do that clearly enough.

Alan B. Morrison:

But I don’t think that that’s the scheme… I don’t think that’s the scheme that Congress set up.

The whole purpose, if you read the legislative history… the goal behind it, and it’s reflected in the statute, was to create a judiciary in the military that was much more like the civilian judiciary than had ever been true in the past.

The judges were given new responsibilities.

They were given for the first time the opportunity to try cases.

Antonin Scalia:

Maybe so.

But that only demonstrates the jobs are very different.

The point is Congress by its 1968 legislation nonetheless expect military… expected military officers to do both of those jobs.

And you’ve told me that’s okay.

Alan B. Morrison:

Well–

Antonin Scalia:

You can expect people to dig ditches and be physicians.

Alan B. Morrison:

–There is a further difficulty with that theory, Your Honor, and there is nothing to support the theory that that’s what Congress was doing, and the Government has not contended otherwise.

One of the difficulties the Government has in defending this statute on its germaneness argument is that for Courts of Military Review, that is the appeals judges, a person need not be a member of the military.

And there are presently–

David H. Souter:

Well, doesn’t that simply go to the constitutionality of those particular appointments?

Alan B. Morrison:

–No, Your Honor, and let me say why I don’t believe that’s the case.

Ruth Bader Ginsburg:

You don’t think that would be severable?

Alan B. Morrison:

It would be… it might be severable, but I think it goes… it goes to the question about whether… as Justice Scalia has suggested, that what Congress did in 1968 was to say that everyone who is a military officer can be a judge, and we equate the two.

That cannot explain how civilians can become judges.

Alan B. Morrison:

There has to be a separate method of appointment and a separate theory.

David H. Souter:

Well, that’s… that’s right, it does not explain that and he was not purporting to explain that.

He’s simply explaining the relationship between those who are officers and those who function as judges, and the appointment of civilians may be an entirely separate problem.

Alan B. Morrison:

No, but I suggest rather like the 13th stroke of the clock, it undermines the theory that this is simply what Congress did in 1968.

Ruth Bader Ginsburg:

But isn’t… wouldn’t you… isn’t it our obligation to construe this law in the way that would save its constitutionality so that if there is a discrete problem, that that would be put aside and not have that tail of some of these officers possibly being civilians wag the whole dog.

Alan B. Morrison:

I don’t disagree with that, Your Honor.

I think, though, that in trying to understand what Congress was doing and whether what Congress was doing was what I believe they were doing, which was to establish a separate judicial office in the military for which only a very few people would become eligible and would be chosen to serve by a process that would take place in the military, that Congress was recognizing that there was a difference and they wanted them treated differently, and what Congress failed to do was to provide for their separate appointment.

Antonin Scalia:

And you interpret that… you attribute that interpretation to Congress, although it needn’t… it need not.

I mean, the other interpretation is that Congress said one commission will enable you to be both, you know, a line officer and a judge.

That’s the other interpretation.

Alan B. Morrison:

Well, one–

Antonin Scalia:

And you want us to take your interpretation in order to declare the statute unconstitutional?

I mean we normally–

Alan B. Morrison:

–Because I think it’s the–

Antonin Scalia:

–We normally do the opposite.

We–

Alan B. Morrison:

–It’s the most obvious interpretation.

But the Government argument… under the Government’s argument, and there’s no… there’s… the Government contends that under its theory anyone who’s a military officer, an infantry officer, a pilot, a dentist, a chaplain, a supply officer, all of those could be judges without a separate appointment because they’re all military officers.

It seems to me that Congress did not have that in mind at all remotely, and that its requirement that there be a separate selection in Article 26 made it clear that what Congress wanted was a separate judiciary.

William H. Rehnquist:

–But it’s equally clear that Congress did not want a second appointment.

Alan B. Morrison:

No, Your Honor, it’s not clear that Congress didn’t.

There’s no–

William H. Rehnquist:

Or they would have provided for it.

Alan B. Morrison:

–Well, only… there’s no evidence that they–

William H. Rehnquist:

To say that this is just what Congress wanted but they just didn’t get around to providing for a separate appointment really doesn’t do justice to any theory of enforcing legislation that I know of.

Alan B. Morrison:

–Well, Your Honor, in fairness to the Congress and in recognition of what has happened, the Appointments Clause was largely, not entirely, dormant until this Court’s decision in Buckley in 1976.

And just as Congress did not focus on many things, there’s no evidence that they focused at all on the Appointments Clause question at any time.

William H. Rehnquist:

Well, other… other than that they certainly didn’t provide for an appointment by the President.

Alan B. Morrison:

Right.

It was not a conscious choice to not provide for it; they just simply never considered it.

Alan B. Morrison:

They never considered the constitutional ramifications of creating–

William H. Rehnquist:

Well, how do you know that?

How do you know that they never considered it?

Alan B. Morrison:

–Well, I’ve been through the legislative history, Your Honor, and I’ve never… I’ve seen no mention of any consideration of the Appointments Clause.

Now, it’s true I can’t go into the mind of every member of all the Armed Services Committee.

William H. Rehnquist:

I would think not.

[Laughter]

Alan B. Morrison:

Yes.

Antonin Scalia:

Well, you say they never considered the constitutional ramifications.

There are no constitutional ramifications if Congress chooses to create one office by one appointment that is so broad that it includes both being a line officer and being a judge.

It can do that.

There are no constitutional ramifications, so why would they have to consider the constitutional ramifications?

The only question is whether they chose to create such an office, and as far as I can tell from reading the 1968 statute, they did.

Now, there’s a problem with respect to officers commissioned before ’68, I acknowledge.

Do you know whether any of the officers involved in these particular cases were commissioned before ’68?

Alan B. Morrison:

It’s my understanding that they were not, Your Honor.

Antonin Scalia:

Were not.

Alan B. Morrison:

And in any event, I would have to say that all of them had been promoted, which required a separate confirmation, since that time.

I mean, so I wouldn’t–

Sandra Day O’Connor:

Mr. Morrison–

–And these particular cases don’t involve situations of use of one of these civilian judges.

Alan B. Morrison:

–They do not.

Those are only the Coast Guard.

They do involve persons in the… who were not appointed to the Judge Advocate General Corps.

That is that the… both of these trials were before Marine officers who do not have, as Justice Kennedy noted earlier, separate appointments under… under the… under the Constitution.

Under the appointments, that is.

They are appointed as line officers in the Marine… Marine Corps, and they’re not law designated.

But under Justice Scalia’s approach, that would not… not matter.

And, in addition, two of the judges on the Courts of Military Review who sat on these panels were also Marine officers.

David H. Souter:

You’re assuming, I take it, throughout, Mr. Morrison, that both the… both the judges, as well as the commissioned officers as such, are all inferior officers.

David H. Souter:

There’s no suggestion in your argument that a military judge is a superior officer within the meaning of the Appointments Clause.

Alan B. Morrison:

No, Your Honor, I do not acknowledge that.

And the reason I–

David H. Souter:

Well, if you don’t acknowledge that, do you… is your answer different to that… your germaneness argument, depending on whether we’re talking about assigning duties assumed to be germane of a superior office to an inferior officer?

Alan B. Morrison:

–Well, since all of the judges here were appointed by the President with the advice and consent… that is, inferior officers can be appointed that way also.

David H. Souter:

Well, I realize that.

But you’re… you’re also assuming that there is no further particular value to be served in enforcing the particular appointment of superior officers to that office as such.

You’re saying you’re assuming that the only value to be served is to get Congress involved or Congress and the President involved, and you’re assuming that there is no further value to be served by the Appointments Clause.

Alan B. Morrison:

No.

And I thank you, Justice Souter.

I actually would say that that is an additional value when we’re talking about separate superior officer; Certainly, the judges on the Courts of Military Review whose decisions are reviewable by the Court of Military Appeals, a civilian court as opposed to a military court are superior officers.

Only 3 percent of their cases ever get to the Court of Military Appeals.

And I would say that the trial judges are superior officers, not inferior officers, as well.

I analogize them to the judges of the tax court.

William H. Rehnquist:

Was this argument pressed below?

Alan B. Morrison:

It wasn’t relevant.

It is not dispositive in this case, Your Honor.

I don’t believe was pressed below.

It is in my brief.

I made this specific argument, and the Government challenged on xx.

William H. Rehnquist:

What difference–

–But it was not… it was not pressed below.

Alan B. Morrison:

I don’t believe so, Your Honor I’m not… I’m not sure.

I did not… I did not rerean the briefs with that in mind.

David H. Souter:

If we are in doubt on the point of classification, do we owe deference to Congress in the implicit classification that Congress seems to have made.

Alan B. Morrison:

Well, I think that in Morrison against Olson that argument was made, and the Court did not accept it.

I believe the Court decided that it was up to the Court to decide, under the constitutional scheme, whether an office was an inferior or superior office.

Obvioasly, Congress has a role in defining the terms of the office.

But–

David H. Souter:

Does the military context have any bearing on the answer to that question?

Alan B. Morrison:

–I do not believe so, Your Honor, except insofar as the Congress has an important role in defining the military and establishing offices.

But I believe–

David H. Souter:

Of course, you… excuse me.

You don’t… you take the position that the military context really has no bearing on the due process analysis.

Alan B. Morrison:

–No, I don’t say it has no bearing at all, Your Honor.

In fact, if there had been an argument made of military necessity here, we would have to take that argument very seriously.

The Government has never made such an argument in the trial court, never made it before Congress.

Congress surely didn’t make a considered judgment as it made… as the State legislature made in Medina or as Congress made in Middendorf against Henry.

Congress, on the… as far as the term of office argument is concerned, has never expressed any reason, and today, even in this Court, the only reason on the term of office issue raised by the Government is that excessively long terms of office would interfere with career paths.

We have never suggested that there need to be excessively long terms of office.

William H. Rehnquist:

This is your due process argument.

Alan B. Morrison:

Yes, it is, Your Honor.

Yes.

Justice Souter asked me about it, so I thought it would be appropriate at this time to move over to that.

Ruth Bader Ginsburg:

May I ask you just one further question on the first appointments part?

Alan B. Morrison:

Sure, Your Honor.

Ruth Bader Ginsburg:

You are not urging, as far as I can tell, any separation of powers concern of the type of the legislature encroaching on executive turf.

This is just, as you see it, a technical violation of the Appointments Clause.

Is there any larger purpose?

I think you… you have conceded that this was an effort by Congress to improve the system, and it could go back to the old ways and it wouldn’t have any problem.

Alan B. Morrison:

I don’t view it as a technical violation.

I view it as a violation of the Appointments Clause and I view it as important because what’s happened is that we have transferred the appointing power for very important people, trial and appellate judges, from persons under the Constitution who are supposed to do the appointing… from them to the Judge Advocate General, who is a mid-level officer in the Navy and Marine Corps.

And I do not view that as a technical violation.

I believe it’s an improper diffusion of power of the kind that this Court has been concerned about in Appointments Clause cases before.

John Paul Stevens:

But the loser is the President, I guess.

Alan B. Morrison:

Not necessarily.

The Department head could be the loser.

The Secretary of Defense would be–

John Paul Stevens:

Either the Secretary of Defense or the President is the victim of this scheme, in effect.

Alan B. Morrison:

–Yes, but we’ve never… that’s never been a question before.

Alan B. Morrison:

That the Appointments Clause was intended to protect the people, as this Court said in Freytag, and not simply the President.

That it was intended to assure accountability and prevent the diffusion of power.

Ruth Bader Ginsburg:

But one thing that could be done is to have less protection by going back to the old system where we didn’t have judicial officers.

Alan B. Morrison:

That is less protection for Appointments Clause purposes, yes, yes.

I’d like to reserve the remainder of my time.

William H. Rehnquist:

Very well, Mr. Morrison.

General Days, we’ll hear from you.

Drew S. Days, III:

Mr. Chief Justice, and may it please the Court:

These cases present the question of whether the military is required by the Constitution to alter procedures and practices bearing on the operation of its system of courts-martial that have been in place for over 200 years.

It is a system designed for a multitude of circumstances in peacetime, at war, on battleships, in submarines, and on land.

These several practices have been established and maintained by the Congress and the President in faithful discharge of powers granted by the Constitution.

With respect to the Appointments Clause argument that petitioners make, it’s our view that Congress did expect that qualified military officers would serve as military judges at some point during their careers.

Sandra Day O’Connor:

Well, General Days, what about these civilian judges that can be appointed?

Do you defend those appointments as somehow meeting the requirements of the Constitution?

Drew S. Days, III:

No, Justice O’Connor.

That particular provision was included in the act at the request of the Coast Guard.

Sandra Day O’Connor:

Well–

Drew S. Days, III:

Because of resource limitations.

Sandra Day O’Connor:

–That’s fine, but I’m asking whether you can defend it or whether you concede that it fails to meet the Appointments Clause requirements?

Drew S. Days, III:

Your Honor, that issue was raised in the Carpenter case, as to whether there could be an appointment of a civilian without going through the requirements imposed by the Appointments Clause.

Sandra Day O’Connor:

Yes.

And what is your answer?

Drew S. Days, III:

And the answer is that those judges have to be appointed by a head of department; in that case, the head of the Transportation Department, the Secretary of Transportation.

Sandra Day O’Connor:

Is the provision severable?

Drew S. Days, III:

I believe it is, yes.

Oddly enough–

Antonin Scalia:

Excuse me.

Before–

Drew S. Days, III:

–Yes.

Antonin Scalia:

–You’re not asserting that the executive branch could, on its own, simply have the head of the department appoint them?

Antonin Scalia:

I mean, that would cure it, but you’d need statutory authorization for that, wouldn’t you?

I mean so the consequence would be that you simply cannot appoint any of these civilian judges until the statute’s amended.

Is that what you think the consequence is?

Or do you think the consequence is without amending the statute, the Secretary of Transportation can make the appointment?

Drew S. Days, III:

That’s correct.

Antonin Scalia:

You think?

Drew S. Days, III:

The latter.

Antonin Scalia:

The latter.

And, unlike Mr. Morrison, you don’t believe that they are appointments to a superior office within the meaning of the clause?

Drew S. Days, III:

I do not.

No, our position is that they’re inferior officers.

They are responsible to higher executive officials.

David H. Souter:

So that your… once again, your germaneness argument does not assume that there could be assignment of an inferior office to perform the duties of a superior office?

Drew S. Days, III:

No, Justice Souter, I don’t believe that that’s appropriate.

I think that as–

David H. Souter:

That would… under your view, would that be unconstitutional?

Drew S. Days, III:

–That would create Appointments Clause problems, yes.

The fact is that in the military a second appointment is not required by the Constitution, because military officers are expected during their careers to undertake the function of a military judge at some point.

Usually the service term is between 2 and 4 years, but it’s also true that people who are commissioned as Judge Advocate General officers serve as trial counsel, as defense counsel, as legal advisors, as staff Judge Advocates.

They perform a variety of functions as law officers within the military.

It’s also important to point out that the military regulatory structure anticipates that any commissioned officer, even an officer lacking qualifications to become a military judge, may at some point be called on to perform quasi-judicial functions.

Take, for example, the role of the convening authority.

That’s not a job that requires the person to be a military officer, and yet the convening authority in this system has the responsibility for reviewing decisions that are made at the court.

William H. Rehnquist:

Well, who could be a convening authority besides an officer?

Drew S. Days, III:

An officer, certainly, would have to be a convening officer.

William H. Rehnquist:

Oh, you said it didn’t require the person to be an officer.

You mean be a judicial officer.

Drew S. Days, III:

That’s right, be a lawyer, for example.

We have the summary court-martial situation that was pointed out by Mr. Morrison.

Ruth Bader Ginsburg:

You… General Days, you were going to explain the role of the convening authority who need not be a lawyer, and perhaps you can enlarge on that.

Drew S. Days, III:

That’s right.

It’s really a commanding officer, and that person is responsible under the Uniform Code of Military Justice for, under proper circumstances, convening a court-martial to inquire into charges against a person in the military.

Ruth Bader Ginsburg:

A function kind of like a grand jury.

Is that–

Drew S. Days, III:

In effect, although there is a procedure, an Article 32 procedure that’s more akin to the grand jury.

But in any event, what the convening authority does is conclude that there are proper circumstances presented to request the setting up of a court-martial, either a special court-martial or a general court-martial.

But I think it’s–

William H. Rehnquist:

–Well, it’s basically a decision whether you have a court-martial or company punishment or captain’s mast, which doesn’t require the–

Drew S. Days, III:

–That’s right, in Article 15.

But after the trial is completed, the convening authority has the ability to review the sentence that has been handed down in the court-martial and exercise clemency, so that there is a role for the convening authority that is a judicial role in some respects, even though he’s not or she is not a military officer.

And it’s also true in a special court-martial situation that there can be proceedings without a military judge present, such that military officers… and in some cases there can be one-third representation of enlisted personnel on a special court-martial to hear the charges and decide on guilt or innocence and allocate sentence.

Antonin Scalia:

–Well, one could say… one could say that that’s closer to being a juror that being a judge, and one of the footnotes in Mr. Morrison’s brief does bring up Justice Jackson’s wonderful quotation regarding the word “quasi” and you do have to use that throughout your brief, that these are quasi-judicial functions.

I think you have to concede that prior to 1968 there was no purely judicial function that a military officer performed.

Is that not accurate?

Drew S. Days, III:

That’s correct, but I think that the petitioners make the point that there is tremendous authority reposed in a military judge.

That is certainly true, but it’s also true that prior to 1968 that same power was reposed in people who did not have military training.

And one of the ironies of this case is that efforts by the military system to upgrade the quality of its justice, if you will, is being used a basis for claiming that there’s an Appointments Clause problem.

Certainly, there are many jobs–

Anthony M. Kennedy:

No.

It’s a question whether or not the Constitution will afford the dignity to the office that the Congress intended.

Drew S. Days, III:

–I understand that, Justice Kennedy, and I certainly agree with that.

I’m not suggesting otherwise.

But I do want to make clear that for 200 years decisions have been made by military officers in very serious cases, including death.

Prior to 1968, those decisions were made by people without legal training necessarily, although in 1948 there was a requirement that law officers be legally trained and certified by the Judge Advocate General’s Corps.

But these very important decisions were made by people who did not have legal training and were not military judges.

It’s also important to point out that in the military, military officers are responsible, literally, for life and death decisions outside of the judicial process.

We are all lawyers and judges, in the case of the Court Justices, but I don’t think we should overlook the fact that a military commander leading a ground squadron or in charge of a bomber that has nuclear weaponry, or the head of a submarine military group has any less responsibility for life and death determinations.

Anthony M. Kennedy:

Are there special statutory qualifications for any of those positions you’ve just mentioned?

Drew S. Days, III:

They are not.

But I would assume–

Anthony M. Kennedy:

Isn’t that different than this case where there is a special statutory qualification?

You have to be a member of the bar of the State and a certified legal officer.

Drew S. Days, III:

–Your Honor, I think that if Congress… if one follows the petitioner’s argument, if Congress decided that it was going to set up special qualifications for pilots on nuclear bombers, presumably that would require a new appointment, given the petitioner’s theory.

Our position is that military officers have this wide-ranging responsibility.

One of those responsibilities is serving as a judicial officer.

Antonin Scalia:

I certainly think it’s easy to say that after 1968, because it was clear on the face of the United States Code that if you were a military officer you might have to do that.

Prior to ’68, it wasn’t clear that you ever had to be a judge.

Drew S. Days, III:

That’s correct.

Antonin Scalia:

I was… I was exploring with Mr. Morrison the possibility of deciding this case on that… on that narrower ground, but I guess that poses a problem.

There are probably some court-martial convictions that were handed down by panels or by judges that were appointed before commissioned… before 1968.

And I guess those things would be left in jeopardy, wouldn’t they, if we decided–

Drew S. Days, III:

That may well be the case.

I simply don’t know, Justice Scalia.

But if… if one takes, for example, the judge who sat in the Hernandez case, the general court-martial case, he came into the military in 1957 or ’58 but decided, after becoming a military officer, to go back to law school, and became a military judge and began serving in 1975.

So this is some indication of patterns that have been followed in the military with respect to peopling and providing military officers to serve in the judiciary.

Ruth Bader Ginsburg:

–If there is an infirmity with respect to a pre-1968 appointment, for one thing if it wasn’t raised and the case is closed, that’s… for another it would be a problem, if not moot, on its way to becoming moot, given the distance we’ve come since 1968.

Drew S. Days, III:

Indeed, that is… that is correct, Justice Ginsburg.

I wanted to turn to the–

William H. Rehnquist:

Well, can you say with any confidence that a conviction rendered by a defective court-martial, if it were determined that the court-martial were defective under the Appointments Clause, would not be subject to attack on habeas corpus, even though it had been… you know, concluded on direct appeal many years ago?

Drew S. Days, III:

–Your Honor, I think that we would have to look to the de facto officer doctrine and operate on the assumption that those decisions were rendered… those judgments were rendered in the context of a legitimate process, and therefore public policy would justify making those de jure offices occupied by, arguably, de facto officers, final.

I wanted to turn, if I may, to the due process arguments that have been raised by the petitioners.

The petitioners have invited this Court to engage in a balancing process with respect to practices that have been, as I’ve said earlier, in effect for centuries.

We disagree with their proposition, namely that balancing is appropriate.

We think that given this Court’s many decisions recognizing the deference that is properly afforded to decisions made by Congress and the President as Commander in Chief, with respect to the governance of the military, it suggests that this is not a situation where the military has the responsibility to come forward and justify practices that are time honored.

But rather it’s the responsibility of petitioners to show why their concerns, why their claims are so extraordinarily weighty as to overcome the balance already struck by Congress.

David H. Souter:

In other words, we don’t have to resolve Medina or Mathews, we just go to Middendorf.

Drew S. Days, III:

Your Honor, we certainly would find that appropriate.

Although there are arguments, and I’ve certainly observed the views of members of this Court with respect to the Medina-Mathews dichotomy.

But I think it is instructive that after Mathews was decided, this Court decided Middendorf a year afterward, and there was no mention of a Mathews line of analysis in Middendorf.

We would suggest, although obviously the Court is the ultimate determiner of this, that what those decisions reflect is the fact that this court saw a different line, a different mode of analysis as being appropriate when dealing with practices in the military that are the result of determinations made by the President and Congress.

Drew S. Days, III:

And we would urge this Court to follow that line of cases in the dispute that’s before this Court today.

Sandra Day O’Connor:

Well, of course, you would acknowledge, I’m sure, that there are concerns when the judge is subject to disciplinary action by superiors, if the judge isn’t tough enough or something like that.

And that’s been a concern that’s been expressed from time to time around the country and I’m sure in the halls of Congress, and these are serious concerns in the military context.

Drew S. Days, III:

Yes, Justice O’Connor, they certainly are serious, and I think they have been taken seriously by the Congress and by the military.

The petitioners talk about the lack of independence insofar as military judges are concerned or courts-martial, but, in fact, they seem to be making an implied bias argument.

And we think that the implied bias line of cases is inappropriate in the context of the military system.

They rely upon Tumey and Ward and Connally, and it is our position that military judges do not have a direct personal substantial and pecuniary interest in the cases that they sit on.

Certainly not as a systematic matter.

After all, in Tumey and Ward and many of the other cases, it was established that the bias was a result of the normal operation of the schemes that were challenged there.

Anthony M. Kennedy:

Would it be unrealistic to say that in a substantial number of cases there is a likelihood that there will be a desire to please the higher command?

Drew S. Days, III:

No, Your Honor, Justice Kennedy, I don’t believe that is appropriate.

What we’ve seen over the years since 1968 is an effort by Congress and the military to isolate and insulate military judges from command influence.

In fact, if there is any central purpose–

Anthony M. Kennedy:

But isn’t… isn’t that simply a recognition that there… that there is a significant risk of this kind of influence?

Drew S. Days, III:

–There… I’m not certain about the qualification, but certainly there is some risk, and there have been concerns expressed in Congress and the military about this.

And Congress has legislated to insulate military judges by, for example, making certain that the fitness reports and the review of the activities of military judges is done by the Judge Advocate General and not by the commander.

It does not go through the regular chain of command.

But, Justice Kennedy, I would concede that there are some concerns here, but they are concerns that have to be evaluated in the military context.

We’re not talking about a civilian circumstance.

We’re talking about other demonstrable and powerful needs of the military that have to be met.

One, then, can look at the concerns that you pointed out.

And my response is that Congress and the military have attempted to deal with those problems, and I think has dealt with them in a largely effective way.

There’s the–

David H. Souter:

General, even if you take it outside the military context, I think what you’re describing is a closer approach to insulation than would be true, for example, between the decisions of elected State court judges and the electorate.

Drew S. Days, III:

–I think that’s right, Justice Souter, and it’s important to… also, to recognize that when we talk about tenure provided to civilian judges, we’re talking about protecting them from the pressures of the political process.

The pressures come not only from the people who pay their salaries, the Governments that pay their salaries, but the various pressures outside of the courtroom that might, if there were not proper protection, influence their judgment.

We have a concern, as Justice Kennedy has pointed out, with command influence from that side of the equation, and there have been efforts to deal with this.

It is not appropriate under the system that’s been established for a superior officer, and certainly for a commander to make any comments whatsoever about a military judge based upon that military judge’s decisions.

It is not appropriate.

Indeed, it is a violation of the law for anyone to try to interfere, to coerce or influence a determination made by a judge.

William H. Rehnquist:

There is a certain irony, isn’t there, in that after all Congress and the military have done to make the system of military justice more fair and more equitable, say, since the time of the Second World War, this is really the first time it’s been challenged?

And it’s much more favorable to a criminal defendant now than it certainly was 40 years ago.

Drew S. Days, III:

That’s correct.

In fact, Chief Justice Rehnquist, if one looks at the system, although there are points one can identify that differ from the civilian justice process arguably unfavorably, there are procedures within the military justice system that, in my estimation, are superior to ones we encounter on the civilian side.

I mentioned the Article 32 proceeding where, unlike our grand juries, the accused is allowed to go before the convening authority, or that particular proceeding, with a lawyer and hear the entire process.

There are also procedures having to do with plea bargaining that are much more rigorous than anything I’ve seen in the civilian context in which, for example, the military judge determines, going line by line in a plea agreement, whether the… or a plea of guilty, whether the accused really does understand the nature of the charges and, in fact, agrees with the guilty plea, in fact to the point of requiring the accused to go through a narrative description of exactly what he or she did.

And then the judge can determine–

Antonin Scalia:

But you don’t really want to rest your case on that, do you?

Drew S. Days, III:

–No, I do not want to.

Antonin Scalia:

That, in all respect, the military system is… I mean, for example we don’t have a right to a jury trial of citizens at large in the military, do we?

Drew S. Days, III:

That’s correct, or–

Antonin Scalia:

And that’s certainly a less significant procedural protection.

But it’s always been that way in the military, right?

Drew S. Days, III:

–It has–

Antonin Scalia:

And therefore it conforms with due process because it’s always been like that.

Drew S. Days, III:

–That’s correct.

Antonin Scalia:

And I suppose you have… you have less rights of privacy.

What might be considered an unreasonable search and seizure in some other context is not in the military.

You just don’t have the same rights of privacy.

And I gather much of your argument is simply that’s the way it’s been for 200 years and it’s not been considered a violation of due process.

Drew S. Days, III:

That’s right, Your Honor.

And it’s been a practice over 200 years by common consent.

We’re not talking about something that has missed the eye of the American people or, indeed, the Congress or the President.

And we think that that history is a powerful testament to its constitutional validity.

I wanted to say–

Ruth Bader Ginsburg:

You also… you made the analogy to the elected judge.

The elected judge is out if he’s not reelected or she’s not reelected, but the consequence for the judicial officer is not that, right?

Drew S. Days, III:

–That is correct, Justice Ginsburg.

I don’t want to minimize the impact of a removal of a military judge, but we are not talking about military judges being out on the street.

There’s no loss of salary, there’s no loss of benefits.

Drew S. Days, III:

The military judge gets another assignment, and–

Ruth Bader Ginsburg:

And I know how we tend to look at it from this angle, but I’m not so sure that for a military officer the highest and best calling is that of a judge.

[Laughter]

Drew S. Days, III:

–Well, Your Honor, I’m not going to respond directly to that except to say that military officers and JAG officers are interested in having a well-rounded career.

And, indeed, the flexibility that the military provides affords them the opportunity to gain experience in a number of different contexts so that, to the extent that they become military judges, they will bring that… that wisdom and that experience to bear.

We’re not talking about first lieutenants, by the way, being military judges.

We talking about, in most instances, lieutenant colonels or colonels.

These are people with extensive experience within the military system bringing that experience to bear as military judges.

One other point I wanted to make about the protections under the military judicial system is that at the top of the entire system is the Court of Military Appeals.

That is, as the Court is aware, a civilian court, and it’s designed to police the military justice system against incursions on the independence and impartiality of military judges.

Judges on the Court of Military Appeals serve for 15 years, and the chief judge has a 5-year term.

That court has shown a willingness, since its creation, to address cases of bias in the military justice system in a very effective way.

There has been some dispute in the briefs about Article 6(a) of the Uniform Code of Military Justice, which is a provision that allows for inquiring into the fitness of military judges and whether it came after the 1983 Military Justice Act legislation or at some other time.

But I think it’s important… and let us concede that it did come later on than 1983… that that provision was a response to what seemed to many a very courageous decision on the part of the Court of Military Appeals to resist an effort by the Secretary of Defense and the Inspector General of the Department of Defense to inquire into the accuracy and propriety of decisions that had been made by military judges in a specific case.

What the Court of Military Appeals said was there cannot be that type of investigation.

It has to be done pursuant to a commission.

In sum, Your Honors, neither the Appointments Clause nor the Due Process Clause is violated by the way in which the military staffs and operates its judicial system.

It is a system created, directed, and monitored by Congress and the Commander in Chief of the United States.

We think that the decisions below should be affirmed.

Thank you very much.

William H. Rehnquist:

Thank you, General Days.

Mr. Morrison, you have 4 minutes remaining.

Alan B. Morrison:

The Government’s basic submission on the Appointments Clause issue is that military judges are no different from military officers.

We think that that is not what Congress meant.

That’s not what Congress wrote in Article 26 and it’s not what Congress enacted in specifying who can perform the function of military trial and appellate judges.

Second, in addition to the Coast Guard, the Navy has had civilians on the Courts of Military Review.

None recently: I believe the last one was in the early 1970’s.

Third, while we dispute vigorously with the Justice Department the applicability of the de facto officer doctrine as it applies to direct appeals, we recognize that it may have considerable force in the context of habeas corpus or collateral attack, assuming that there was… that Teague itself did not prevent the overturning of military court-martials of many years.

David H. Souter:

Because it’s basically a prospectivity doctrine, and not a doctrine that goes to the merits.

Alan B. Morrison:

Excuse me, Your Honor?

David H. Souter:

Because it’s basically a prospectivity doctrine.

Alan B. Morrison:

De facto.

David H. Souter:

Is there… yeah.

Alan B. Morrison:

The de facto officer, yes.

David H. Souter:

Yeah.

Alan B. Morrison:

Yes.

And last, the Government talks on the due process issue about this time-honored practice, 200 years.

Well, we haven’t had military judges for 200 years, so the time to start counting is 1968, and since that time that’s the first time we’ve had anybody that has terms of office.

What they forget, of course, is that the time-honored practice every place except in the military is for those persons who are performing judicial functions to have some term of office, to have some kind of protection about the very concerns that Justice Kennedy and others have spoken about here.

The Government says deference, deference, deference.

But it doesn’t say deferent to what, other than the fact that they haven’t done anything.

There’s not a single reason advanced, a single military policy or military necessity that can form the basis of reliance on this deference, and for that reason we believe that due process, as well as the Appointments Clause, has been violated.

We ask the Court to reverse the convictions.

Thank you, Your Honor.

William H. Rehnquist:

Thank you, Mr. Morrison.

The case is submitted.