Courts Martial and Judicial Recusals (Part 2)

Justice Kagan continued: Shortly thereafter, Judge Mitchell participated in Ortiz’s CCA appeal.  Ortiz claimed that Judge Mitchell’s CMCR appointment barred his continued CCA service under both a statute and the Constitution. First, he argued that the appointment violated §973(b)(2)(A), which provides that unless “otherwise authorized by law,” an active-duty military officer “may not hold, or exercise the functions of,” certain “civil offices” in the federal government.  Second, he argued that the Appointments Clause prohibits simultaneous service on the CMCR and the CCA. The CAAF rejected both grounds for ordering another appeal.

This Court has jurisdiction to review the CAAF’s decisions. The judicial character and constitutional pedigree of the court-martial system enable this Court, in exercising appellate jurisdiction, to review the decisions of the court sitting at its apex. An amicus curia, Professor Aditya Bamzai, argues that cases decided by the CAAF do not fall within Article III’s grant of appellate jurisdiction to this Court.  In Marbury v. Madison, 1 Cranch 137, Chief Justice Marshall explained that “the essential criterion of appellate jurisdiction” is “that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.”  Id., at 175. Here, Ortiz’s petition asks the Court to “revise and correct” the latest decision in a “cause” that began in and progressed through military justice “proceedings.”  Unless Chief Justice Marshall’s test implicitly exempts cases instituted in a military court, the case is now appellate. There is no reason to make that distinction. The military justice system’s essential character is judicial. Military courts decide cases in strict accordance with a body of federal law and afford virtually the same procedural protections to service members as those given in a civilian criminal proceeding.

One difference between the juries in military courts and civilian courts is that they are not chosen by the attorneys via the use of challenges for cause and peremptory challenges. The juries are chosen by the convening authority. Another difference is that juries in military courts consist of three to five jurors, as opposed to the twelve juror that sit in civilian criminal courts. The one exception is that military death penalty cases have twelve jurors.