Courts Martial and Judicial Recusals (Part 5)

by | Nov 9, 2018 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

The Court continued in relevant part: Judge Mitchell’s simultaneous service on the CCA and the CMCR violated neither §973(b)(2)(A) nor the Appointments Clause. The statutory issue turns on two interlocking provisions.  Section 973(b)(2)(A) is the statute that Ortiz claims was violated here.  It prohibits military officers from “holding, or exercising the functions of,” certain “civil offices” in the federal government, “except as otherwise authorized by law.” Section 950f(b) is the statute that the Government claims “otherwise authorizes” Judge Mitchell’s CMCR service, even if a seat on that court is a covered “civil office.” It provides two ways to become a CMCR judge.  Under §950f(b)(2), the Secretary of Defense “may assign” qualified officers serving on a CCA to be judges on the CMCR. Under §950f(b)(3), the President (with the Senate’s advice and consent) “may appoint” persons— whether officers or civilians is unspecified—to CMCR judgeships.

Ortiz argues that Judge Mitchell was not “authorized by law” to serve on the CMCR after his appointment because §950f(b)(3) makes no express reference to military officers.  In the circumstances here, however, the express authorization to assign military officers to the CMCR under §950f(b)(2) was the only thing necessary to exempt Judge Mitchell from §973(b)(2)(A). Once the Secretary of Defense placed Judge Mitchell on the CMCR pursuant to §950f(b)(2), the President’s later appointment made no difference. It did not negate the Secretary’s earlier action, but rather ratified what the Secretary had already done. Thus, after the appointment, Judge Mitchell served on the CMCR by virtue of both the Secretary’s assignment and the President’s appointment. And because §950f(b)(2) expressly authorized the Secretary’s assignment, Judge Mitchell’s CMCR service could not run afoul of §973(b)(2)(A)’s general rule.

Ortiz also raises an Appointments Clause challenge to Judge Mitchell’s simultaneous service on the CCA and the CMCR. That Clause distinguishes between principal officers and inferior officers. CCA judges are inferior officers. Ortiz views CMCR judges as principal officers. And Ortiz argues that, under the Appointments Clause, a single judge cannot serve as an inferior officer on one court and a principal officer on another. But the Court has never read the Appointments Clause to impose rules about dual service, separate and distinct from methods of appointment. And if the Court were ever to apply the Clause to dual-officeholding, it would not start here. Ortiz does not show how Judge Mitchell’s CMCR service would result in “undue influence” on his CCA colleagues.

Justice Thomas filed a concurring opinion. Justice Alito filed a dissenting opinion, in which Justice Gorsuch joined.

Ortiz’s likely response to Justice Kagan’s last point would be that superior officers have inherent influence over inferior officers. The “undue influence” would be that the inferior officers would naturally feel pressure to affirm their superior officer’s prior decision in Ortiz’s case.