194
Ginsburg, J., concurring
has never decided how to resolve doubt in this area; the Morrison Court did not address this issue since it understood the independent counsel to be "clearly" an inferior officer. Ibid. Forced to decide now, I agree with the approach offered by then-Judge Ginsburg in her Court of Appeals opinion in the independent-counsel case. "Where . . . the label that better fits an officer is fairly debatable, the fully rational congressional determination surely merits . . . tolerance." In re Sealed Case, 838 F. 2d 476, 532 (CADC) (dissenting opinion), rev'd sub nom. Morrison v. Olson, 487 U. S. 654 (1988). Since the chosen method for selecting military judges shows that neither Congress nor the President thought military judges were principal officers, and since in the presence of doubt deference to the political branches' judgment is appropriate, I conclude that military judges are inferior officers for purposes of the Appointments Clause.
II
Because the limits the Appointments Clause places on the creation and assignment of duties to inferior offices are respected here, for the reasons the Court and Justice Scalia give, and on the understanding that the Court addresses only the Appointments Clause's limits regarding inferior officers, I join the Court's opinion.
Justice Ginsburg, concurring.
The care the Court has taken to analyze petitioners' claims demonstrates once again that men and women in the Armed Forces do not leave constitutional safeguards and judicial protection behind when they enter military service. Today's decision upholds a system of military justice notably more sensitive to due process concerns than the one prevailing through most of our country's history, when military justice was done without any requirement that legally trained officers preside or even participate as judges. Nevertheless, there has been no peremptory rejection of petitioners' pleas.
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