190
Souter, J., concurring
Congress and signed by the President, would amount to an impermissible abdication by both political branches of their Appointments Clause duties. Military officers commissioned before 1968, though they received Presidential appointment and Senate confirmation, were chosen to fill inferior offices that did not carry the possibility of service as a military judge. If military judges were principal officers, the Military Justice Act of 1968 would have authorized the creation and filling of principal offices without any Presidential nomination or Senate confirmation to that principal office, or indeed to any principal office at all. Such a process would preclude the President, the Senate, and the public from playing the parts assigned to them, parts the Framers thought essential to preventing the exercise of arbitrary power and encouraging judicious appointments of principal officers.
The office to which military officers have been appointed since enactment of the 1968 Act includes the potential for service as a military judge. But that would be a sufficient response to petitioners' Appointments Clause objection only if military judges were inferior officers. Otherwise, the method for selecting military judges even from the ranks of post-1968 commissioned officers would reflect an abdication of the political branches' Appointments Clause duties with respect to principal officers. Admittedly, the degree of abdication would not be as extreme as in the prior setting, for the President and Senate are theoretically aware that each officer nominated and confirmed may serve as a military judge. Judging by the purposes of the Appointments Clause, however, this difference is immaterial. It cannot seriously be contended that in confirming the literally tens of thousands of military officers each year the Senate would, or even could, adequately focus on the remote possibility that a small number of them would eventually serve as military
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