Baseball Crank: LAW: Judge Graham

November 9, 2005

LAW: Judge Graham

I did not know that Lindsey Graham is also an appeals judge (registration req.):

Sen. Lindsey Graham of South Carolina is also Judge Graham on a federal military court -- an arrangement that has drawn the Republican into a battle over the separation of powers.
Can Graham write laws as a senator and then interpret them as a military reserve judge? Does his job as a partisan politician prevent him from being impartial on the bench?

Those were the questions raised in a hearing Tuesday, when attorneys for Airman 1st Class Charles Lane argued that Lane was denied a proper appellate review of a cocaine conviction because Graham -- assigned two years ago as a reserve judge -- helped hear the appeal. It's a contention the government denies.

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The court Graham sits on is a lower appellate court -- the Air Force Court of Criminal Appeals at Bolling Air Force Base.
Graham has served in the military for more than two decades as an Air Force judge, prosecutor and defense lawyer, making him a recognized expert on military issues on Capitol Hill.

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He served on active duty in Germany in the 1980s, then in the South Carolina Air National Guard before transferring to the Reserves in the 1990s. He was elected to the Senate in 2002 after three terms in the House and became a Reserve Appellate Judge in October 2003.

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The reservist issue is not a new one.
A private group sued the government to challenge the practice of lawmakers serving as reservists during the 1970s, when more than 100 were doing so, said Spitzer.

Plaintiffs "felt Congress was so full of military officers that it created a conflict ... in favor of the military," he said of the case, which succeeded in the lower court but was reversed on appeal on the grounds the group didn't have standing to file the suit.

Posted by Baseball Crank at 10:27 PM | Law 2005 | Comments (4) | TrackBack (0)

Comments

I can't imagine any issue of a congressman being in the reserves. If that gives them a military bent, well, no more than JFK or Ike, Carter or Nixon, or TR, or Washington, you can see where this goes. Or the opposite, say Lincoln and FDR, who led the nation during its most bloody periods.

However, the idea that a member of congress also serves in one of the other three branches is an untenable situation. The very concept that you are your own check and balance would have driven Madison to despair.

Posted by: Daryl Rosenblatt at November 10, 2005 10:57 AM

I have no problem with either circumstance. Judge Graham only sees cases like the one that is being questioned because he, as he says, "helps out when he can." He never sits on complex cases and if he were to get a case based on detainees or any law that he had a hand in passing he would recuse himself.

The court he sits on is and Artice I court and does not have all the same powers as an article III court. He was assigned and not appointed. For the argument to work that he should not sit on the court you also have to attack his commission, wich is a non starter.

Posted by: Judy Kratochvil at November 10, 2005 12:03 PM

I think it's crap. Daryl's right.

The fact that Graham can jump between roles as the go-to guy in Congress for militatry/justice affairs AND serve on the bench of a federal military court is egregious.

You throw it out there without offering an opinion, Crank. What's up?

Posted by: Mr Furious at November 10, 2005 12:26 PM

Yeah, I posted this before thinking about where I come out. I can't speak to the specific legal arguments, but on an abstract level, I don't see a substantial problem if Graham is mainly applying the law to the facts or construing military regulations. I'd have a big problem with him ruling on the constitutionality of Acts of Congress.

The grey area is in construing the intended scope of Acts of Congress - you wouldn't want a legislator relying on his own involvement.

Posted by: The Crank at November 10, 2005 1:36 PM