The Supreme Court and national security law expertise: who can fill the gap? Three military vets who would be great justices

According to reports in yesterday’s papers, the President is very close to naming his nominee to the fill the Supreme Court vacancy occasioned by the death of Justice Anthony Scalia.  Unfortunately, none of the names reported under serious consideration seem to have any particular expertise in national security law, and none are military veterans.

Over at Just Security, Professor Phillip Bobbitt, one of the nation’s foremost Constitutional law scholars, has written a noteworthy essay entitled “The Supreme Court Could Use an Expert on National Security or International Law” underlining the gap that currently exists in the Court’s expertise.  Bobbitt confidently predicts – and I agree – that the areas of the law he cites in his essay’s title “are bound to become more central to the work of the Supreme Court in the ensuing years.”

Bobbitt recommends Avril Haines, the current Deputy National Security Advisor and former deputy director of the CIA, as well as Sarah Cleveland, a colleague of Bobbitt’s at Columbia Law School and director of its Institute on Human Rights and – importantly – a former Counselor on International Law at the State Department.  Both of Bobbitt’s picks seem to be terrific candidates, but neither is a military veteran.

Professor Bobbitt’s essay comes on top of a thoughtful and even more pointed post on Lawfare (“Time for a National Security Expert on the Supreme Court”) by Shane Reeves and Winston Williams. They argue that “there is a noticeable lack of experience among the current justices—or any candidate publicly considered for the current vacancy—in the practice of operational national security law,” and add:

A lack of professional diversity is problematic, therefore, not for the socials reasons discussed in Scalia’s dissent, but because the United States now finds itself in a persistent state of conflict. However unfortunate, in the environment of this new normal, the Supreme Court will be increasingly called to address complex national security legal issues. More and more of the fundamental constitutional questions of our day will have national security facets.

While military service is not – and should not be – the sine qua non of high court service, expertise in national security matters is vitally important.  As Andrew Cohen wrote in The Atlantic in 2012:

We don’t need, or necessarily want, our judges to be former soldiers. And our justices should never be cheerleaders for an administration’s war effort, or for the Pentagon, or for the vast industrial complex which accompanies it. But military law, and constitutional law involving military issues, are often before the justices. And the concept of an “endless war” on terrorism suggests an “endless” stream of military-type cases involving the rights of foreign detainees.

Accordingly, at this moment in history a veteran with the right qualifications would be a shrewd selection, and fill a gaping hole in the Court’s perspective.  Here are my three recommendations:

Perhaps the person who would present the most formidable challenge to those Republicans who believe that the nomination should be left to the nest President would be Senator Lindsay Graham, a retired Air Force Judge Advocate.

Despite his authentic conservative credentials, I believe Graham is actually a moderate on many issues.  The Atlantic describer him in 2014 as someone who has productively worked with Democrats,.and who is an “unapologetic champion of bipartisanship and compromise.”  Although there are no doubt plenty of campaign-trail denigrations of the Obama presidency to which opponents can point, there are also real demonstrations of respect for the President to counter them.

Another possibility is Margaret A. Ryan, a highly-regarded judge on the U.S. Court of Appeals for the Armed Forces (CAAF).  (For those who aren’t familiar with CAAF, it is an all-civilian appellate court for military cases, roughly the equivalent to a Federal circuit court of appeals).

Judge Ryan is a former Marine, a Republican, and a summa cum laude graduate of the University of Notre Dame Law School.  True, her clerkship for Supreme Court Justice Clarence Thomas may make her a nonstarter for many liberals – even though she does not necessarily adhere to her former boss’s views – but her nomination would be almost impossible for Republicans to oppose, and it would address President Obama’s reported desire for increased intellectual and gender diversity.

There is another possible candidate who has generated some national discussion: Brigadier General Mark Martins, the current chief prosecutor of the Guantanamo military commissions’ cases.

Martins, who finished first in his class at West Point before earning honors as a Rhodes Scholar at Oxford, is also a magna cum laude graduate of Harvard Law School where he served on the law review with Obama.  Despite being a military lawyer, he earned the Army’s coveted Ranger tab, and went on to serve tours in both Iraq and Afghanistan.  In 2013 he was the subject of a flattering 2013 cover story in the journal of the American Bar Association.

A recent (Feb. 26) op-ed in the Los Angeles Times noted that Justice Alito’s stint in the Navy reserves is the only vestige of military experience on the Court.  It went on to say this about Martins:

He’s not an obvious liberal or an obvious conservative; we don’t know his position on abortion, gun control and campaign finance. We also don’t know whether Martins would accept a nomination. He already turned down the chance for a promotion in order to finish the Guantanamo trials. In that decision, as throughout his career, he has displayed the pragmatism, humility and intellectual honesty that are the hallmarks of a good justice.

Will any of these be selected?  Not likely…at least not on the first go-around…but they ought to be kept on (or, more accurately, put on) the list of potential justices.  The point is that given the world as it is today and as it will be in the foreseeable future, the Court needs the perspective of someone with a real national security interest and background.