21 August 2012

President Obama and GOP Presidential Candidate Romney: Should military servicemembers have equal access to the United States Supreme Court?

Former Master Sergeant John Hatley
The recent media attention of former U.S. Army Master Sergeant John Hatley who is seeking review of his court-martial conviction in the Supreme Court of the United States, or SCOTUS, warrants the mainstream media to ask President Obama and Republican Presidential Candidate Romney the following question:

Should military servicemembers have equal access to the Supreme Court of the United States that civilians, illegal immigrants and even enemy combatants enjoy?

If not, why not?

Under existing federal law, Title 28 United States Code section 1259, Hatley has absolutely no right to access the high court because the nation's top military court, the Court of Appeals for the Armed Forces, or CAAF, (also known as an Article I court) did not grant review of his case or relief in his petition.  In those circumstances where the CAAF does not grant review or relief to a servicemember SCOTUS simply does not exist.  CAAF functions as the gatekeeper to SCOTUS unlike other appellate courts in the nation. 

Congresswoman Susan Davis (D-San Diego) and Senator Dianne Feinstein (D-Calif.) have introduced legislation in the House and Senate, Equal Justice for Our Military Act of 2011.  In previous Congresses Republicans led by Congressman Lamar Smith (R-Tex.), have opposed the idea of servicemembers being afforded equal access to SCOTUS.  The GOP argument is that SCOTUS would be too burdened by petitions.

The Congressional Research Service has also written a paper on the issue which can be found here.  Following this CRS paper, in March 2011, bills to correct the inequity were introduced in both houses of the 112 Congress.  But Republicans, as with previous Congresses (109th, 110th, 111th Congresses), have blocked any attempts to getting it passed.

I am most keen to know what the position of the Democrat and Republican nominees for President of the United States are on this issue. 

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