Liam Hardy Confirmed to CAAF

12/3/2020

Liam Hardy is now the newest judge at CAAF, confirmed this afternoon by the Senate. Congratulations to Judge Hardy, who will now occupy the chambers of his former boss--Judge Ryan! We at CAAFlog look forward to reading his opinions and commenting on them for years to come.

9 Comments

Scott

12/3/2020 02:55:37 pm

Congratulations to Judge Hardy! An important job indeed and, I’m sure, in good hands.

I must admit that I did not follow this nomination and a quick google search doesn’t reveal much information about it. But I am a bit puzzled looking at the linked Twitter post saying the confirmation vote was 59 to 34. Maybe it’s naive, but I would expect CAAF confirmations to be more or less apolitical.

CAAF obviously is not weighing in on social issues. I am not even sure what a “conservative” vs “liberal” CAAF judge would look like. I guess the traditional “conservative” position is more “tough on crime” but (1) in not sure that’s even the case anymore and (2) that hardly seems like a reason to vote against a nominee.

Perhaps there is a block in the senate who will vote no on any nominee because it’s an election year (post-election at this point)? I suppose there’s some procedural consistency to that.

I don’t know. I’m not sure I want to know. I was just surprised to see such a heavily split vote for what I would expect to be a completely uncontroversial nominee.

Poster

12/3/2020 08:29:59 pm

Any number of reasons for a split vote.
1) 12 years experience
2) Already a CAAF employee on the Court (Sparks)
3) XY v. XX (no social issues?)
4) 197 days sitting in the wings, why now?

Brenner Fissell

12/4/2020 11:29:58 am

You’re reading way too much into this, I think. It’s probably uniform opposition to all Trump lame duck confirmations.

Scott

12/4/2020 11:41:50 am

I think Professor Fissell is right - just uniform opposition to all nominees for the remainder of the term is most likely reason for split vote.

Still - I would like to see CAAF nominations be above such reflexive partisanship. I guess that’s too much to hope for.

Poster

12/4/2020 12:20:36 pm

Gents, a few of my posts haven't been put on screen. Reading more, or too much, into the subject is nothing new. At 59 to 34, 7 people didn't even cast a vote. Nothing is uniform.

Like I said, it's 'any number.' That can express a wide range of prospects:

Probability:
E(x) = Democrats v. Republican

Complex:
P
r
i
o
r
i
Other
i
e
s

Irrational:
e = lame duck vote

Circular argument:
π = The arguments for his nomination are proof he isn't fit.

The guy is from the STEM field, so I am happy to see his sort on the bench.

William E. Cassara

12/3/2020 04:07:37 pm

Looking forward to getting to know Judge Hardy. I anticipated a female to replace Judge Ryan but, with another vacancy next year, I suspect that will be resolved.

Poster

12/4/2020 12:25:42 pm

I will say this though; the idea that CAAF doesn't deal with social issues is misplaced. The damage to the 4th Amendment in the past century isn't a small thing, and CAAF has 'good intentioned' their way into that discussion.
A Judge Ryan protégée won't be the cure for that.

Scott

12/4/2020 03:07:05 pm

There have certainly been a large number of decisions both expanding and contracting constitutional protections in this arena over the past century, but I’m not sure it’s fair to say that the 4th Amendment, or criminal procedural protections more generally, have been, as a whole, eroded over the past century. To the contrary, it seems on balance they have been substantially increased. A century ago we didn’t have a fully developed exclusionary rule (certainly not at the state level) for unreasonable searches, nor a right to an attorney for the indigent, nor Miranda rights, nor an exclusionary rule for coerced confessions, etc. The last century has seen the creation and expansion of protections we now take for granted in all these areas and more, primarily driven by the courts.

Yes, it’s a mixed bag (personally, I’m particularly concerned about the expansion of the good faith exception to limit the exclusion of improperly obtained evidence, particularly in the military). And yes, it often seems that appellate courts go out of their way to save the government from itself, both in the application and of precedent/rules to the facts of individual cases, and in the development of precedent/rules. And yes, there are disturbing trends in our current climate with respect to surveillance and data collection by the government. But let’s not pretend there has been a continuous one-way trend towards limiting criminal procedure protections.

If your view is that there has been an erosion of rights over time, I would be curious at what date in the past you would argue criminal procedure protections were at their strongest. Now, of course, the military justice system is somewhat different, and the military accused has certainly lost substantial protections in the recent past (roughly the past 10 years perhaps), but the great majority of changes in that arena have been legislative / rule-based rather than judicial. We certainly can’t blame the courts for the gutting or article 32, the near total blockage of pretrial access by the defense to victims, the reduction in clemency powers of the convening authority, the continuous alteration of the elements of criminal offenses (and defenses) - seemingly with an ever expanding eye toward criminalizing more and more conduct, the structure of the referral decision tree that presses weak cases forward to trial, the many government friendly changes to the MREs, etc, etc, etc. In fact, many of these changes were made by the legislature in direct response to “defense friendly” decisions by CAAF or other courts - for example the changes to MRE 304 after the Adams decision on corroboration of confessions, essentially the next NDAA mandated the reversal of the court’s decision (or at least muted it by changing the underlying rule upon which it was based) (perhaps not the perfect example as this was not strictly speaking a constitutional issue but just the first example that came to mind).

Poster

12/6/2020 03:31:57 pm

Reference question on the curve of when rights where the most protected: There are straw men arguments, and there are straw house arguments. I am not going to get into either.
The defense of personal security is a profound social issue. It does speak to a core of who we aspire to be as a country and a people. The peekaboo of our neighbors or government, whether for our own good, or for the greater good is a reason I will enumerate with a negative (-) value.
For whatever efforts the legislature may have taken, the courts have done little in my lifetime to contain police power.

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Liam Hardy Confirmed to CAAF

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