OCTOBER TERM, 1993
certiorari to the united states court of military appeals
No. 92-1482. Argued November 3, 1993—Decided January 19, 1994*
After courts-martial sentenced petitioners Weiss and Hernandez, United States Marines, on their pleas of guilty to offenses under the Uniform Code of Military Justice (UCMJ), their convictions were affirmed by the Navy-Marine Corps Court of Military Review in separate appeals. In affirming Weiss' conviction, the Court of Military Appeals rejected his contentions, first, that military trial and appellate judges have no authority to convict because the method of their appointment by the various Judge Advocates General under the UCMJ violates the Appointments Clause, U. S. Const., Art. II, § 2, cl. 2, and, second, that such judges' lack of a fixed term of office violates the Fifth Amendment's Due Process Clause. Based on this decision, the court summarily affirmed Hernandez' conviction.
Held: 1. The current method of appointing military judges does not violate the Appointments Clause, which, inter alia, requires the President to appoint "Officers of the United States" with the advice and consent of the Senate. All of the military judges involved in these cases were already commissioned military officers when they were assigned to serve as judges, and thus they had already been appointed pursuant to the Clause. The position of military judge is not so different from other positions to which an officer may be assigned that Congress has by implication required a second appointment under the Clause before the officer may discharge judicial duties. The fact that the UCMJ requires military judges to possess certain qualifications, including membership in a state or federal bar, does not in itself indicate a congressional intent to create a separate office, since special qualifications are needed to fill a host of military positions. Moreover, the UCMJ's explicit and exclusive treatment of military judges as officers who must be "detailed" or "assigned" by a superior officer is quite different from Congress' treatment of a number of top-level positions in the military hierarchy, such as Chairman of the Joint Chiefs of Staff, for which a second appointment under the Clause is expressly required. Nor does the Clause by its own
*Together with Hernandez v. United States, also on certiorari to the same court (see this Court's Rule 12.2).
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