(concurring in the result):
The lead opinion has put forward a thoughtful and well-reasoned analysis of how Article II, section 2, paragraph 2, clause 2, of the United States Constitution is not violated by the present manner of selecting military judges. However, I part ways with the underlying premise of the lead opinion that the Appointments Clause applies to the selection of a military judiciary and therefore can only concur in the result.
In concluding that the Appointments Clause does not apply either to selection of military trial or military appellate judges, one of necessity must engage in both an historical and a contemporary analysis of the Constitution and its Appointments Clause. In applying both approaches, the intentions of the Framers can be determined from documents that are available. See, e.g., 4 P. Kurland & R. Lerner, The Founders’ Constitution (hereafter Kurland) (1987); J. Harris, The Advice and Consent of the Senate (hereafter Harris) 25-30 (1953).
A. The Historical Approach
At the time of the Constitutional Convention in Philadelphia from late May to mid-September 1787, no thought was given to how the Appointments Clause should be applied to military trial and appellate judges. Kurland, supra at 28-38. Two major themes dominated the debates which shaped the Appointments Clause. First, those who opposed a strong executive resisted giving the chief executive the nomination authority over the national judiciary without some sort of Council to screen the appointment process. Second, those who opposed a strong legislature feared that if the appointment authority was given to the legislative branch, the appointment of a national judiciary would fall into the hands of certain factions. Harris, supra at 25-30.
At the time of these debates there was no military judiciary in place, that function being served by military officers. There was, however, a great deal of debate and *235attention paid to a federal civilian judiciary as evidenced by Alexander Hamilton’s discussions in The Federalist Papers, Nos. 78 through 83.1 Thus, historically, the Founding Fathers gave no explicit consideration to including a military judiciary within the ambit of the Appointments Clause.
B. The Contemporary Approach
A contemporary approach to reviewing our Constitution and its provisions looks at the intent of the Framers and the interests and values they meant to protect. A contemporary reading of the Constitution is important because as John Marshall stated: “[I]t is a constitution we are expounding.” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407, 4 L.Ed. 579 (1819). The Constitution is a living document and “states or ought to state not rules for the passing hour, but principles for an expanding future,” B. Cardozo, The Nature of the Judicial Process 83 (Yale Univ. Press 1921), and “a principle to be vital must be capable of wider application than the mischief which gave it birth.” Weems v. United States, 217 U.S. 349, 373, 30 S.Ct. 544, 551, 54 L.Ed. 793 (1910).
Utilizing a contemporary analysis I start by asking what interests and values were meant to be protected by the Appointments Clause. It is undisputed that the Appointments Clause was designed as a series of checks and balances between the Executive and Legislative Branches on the creation and filling of offices. Kurland, supra at 33. The Framers were concerned with a division of power to prevent one branch from becoming more powerful than the other.
The debates among the Framers over appointments authority in general and judicial appointments in particular bear out their desire for checks and balances as well as for qualified appointees. Edmund Randolph of Virginia argued that if appointment authority was in the legislative branch, this “generally resulted from cabal, from personal regard, or some other consideration than a title derived from the proper qualifications.” Whereas George Mason, also of Virginia, argued that, if the appointment to the judiciary was with the executive, it was “a dangerous prerogative. It might even give him an influence over the Judiciary department itself.” Id. at 33.
Alexander Hamilton of New York thought that giving the Senate approval authority over nominations would be a check on the “spirit of favoritism of the President” and would work against the appointment of unqualified individuals or individuals selected because of a family connection or personal attachment. Harris, supra at 28. Hamilton argued that to empower the legislature with appointment authority would just lead to “intrigue and cabal.” Id. Cf Kurland, supra at 31. Nathaniel J. Ghorum (also spelled Gorham in some texts) of Massachusetts thought it best that the Executive be responsible for appointment because “he will be careful to *236look through all the States for proper characters.” Id. at 31. To prevent dependency on a single individual making the appointment, some Framers thought it best to have the Senate vote on the appointments. Others were concerned that a Senate vote would mean too “much fettering [in] the Senate.” Id. at 32. Eventually the Framers settled on appointments by the executive with the advice and consent of the Senate.
In defense of the appointment power enunciated in the Constitution, Alexander Hamilton in The Federalist No. 66 commented as follows on how the appointment power would work:
It will be the office of the president to nominate, and with the advice and consent of the senate to appoint. There will of course be no exertion of choice on the part of the senate. They may defeat one choice of the executive, and oblige him to make another; but they cannot themselves choose — they can only ratify or reject the choice, he may have made. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed; because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favourite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen that the majority of the senate would feel any other complacency towards the object of an appointment, than such, as the appearances of merit, might inspire, and the proofs of the want of it, destroy.
The Federalist: A Collection of Essays Written in Favour of The New Constitution, vol. II at 218-19 (J. and A. McLean, New York, 1788)(hereafter cited as McLean).
Thus the interests and values of providing for the selection of officers, including judicial officers, based on merit and dividing power between the executive and legislative branches gave birth to the Appointments Clause. The question remains whether, in order to protect those interests and values, it is necessary to select military trial and appellate judges pursuant to the Appointments Clause. In order to answer that question we must also examine the additional interests and values unique to national security and military matters which the Framers sought to protect. In so doing we can determine whether these other factors justify treating the military judiciary different from the federal civilian judiciary and thereby render the Appointments Clause inapplicable to military judges.
C. Analysis
Because of national security interests and concerns for unforeseen military exigencies, it was the intent of the Framers to vest great authority over these matters in Congress. L. Tribe, American Constitutional Law 353-56 (2d ed.1988). They accomplished this in the Constitution through the enumerated powers of Article I, Section 8, Clauses 11 through 16 and 18. Under the enumerated powers, Congress has the power to “raise and support Armies” (cl. 12); “provide and maintain a Navy” (cl. 13); “make Rules for the Government and Regulation of the land and naval Forces” (cl. 14); and “make all laws that are____necessary and proper” (cl. 18).
The rationale for this approach by the Framers is found in Alexander Hamilton’s Federalist No. 23:
The authorities essential to the care of the common defence are these — to raise armies — to build and equip fleets — to prescribe rules for the government of both — to direct their operations — to provide for their support. These powers ought to exist without limitation: Because it is impossible to foresee or define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy themS The circumstances that endanger the safety of nations are infinite; and for this reason, no constitutional shackles can wisely be imposed on the power to *237which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils, which are appointed to preside over the common defence.
Whether there ought to be a federal government intrusted with the care of the common defence is a question, in the first instance, open to discussion; but the moment it is decided in the affirmative, it will follow, that that government ought to be cloathed with all the powers requisite to the complete execution of its trust. And unless it can be shewn, that the circumstances which may affect the public safety are reducible within certain determinate limits; unless the contrary of this position can be fairly and rationally disputed, it must be admitted as a necessary consequence, that there can be no limitation of that authority, which is to provide for the defence and protection of the community, in any matter essential to its efficacy; that is, in any matter essential to the formation, direction or support of the NATIONAL FORCES.
McLean, supra, vol. I at 144-45 (some emphasis [*] added).
This view was underscored by James Madison in The Federalist No. 41:
But was it necessary to give an INDEFINITE POWER of raising TROOPS, as well as providing fleets; and of maintaining both in PEACE, as well as in WAR?
The answer to these questions has been too far anticipated, in another place, to admit an extensive discussion of them in this place. The answer indeed seems to be so obvious and conclusive as scarcely to justify such a discussion in any place. With what colour of propriety could the force necessary for defence, be limited by those who cannot limit the force of offence? If a federal Constitution could chain the ambition, or set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its own government, and set bounds to the exertions for its own safety.
McLean, supra, vol. II at 39.
Yet the Framers, mindful of the new nation’s fears regarding establishment of a standing armed force in peacetime, S. Pad-over, To Secure These Blessings 203-08 (1962), did not propose to give the new executive and legislature this great authority without some limitation. Article I, Section 8, Clause 12, gives Congress the authority to “raise and support Armies” but also provides that “no Appropriation of Money to that Use shall be for a longer Term than two Years.” In The Federalist No. 26, Alexander Hamilton puts forth a spirited defense of this clause that limits appropriations for military purposes to two Years:
The legislature of the United States will be obliged by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. They are not at liberty to vest in the executive department permanent funds for the support of an army; if they were even incautious enough to be willing to repose in it so improper a confidence. As the spirit of party, in different degrees, must be expected to infect all political bodies, there will be no doubt persons in the national legislature willing enough to arraign the measures and criminate the views of the majority. The provision for the support of a military force will always be a favourable topic for declamation. As often as the question comes forward, the public attention will be roused and attracted to the subject, by the party in opposition: And if the majority should be really disposed to exceed the proper limits, the community will be warned of the danger, and will have an opportunity of taking measures to guard against it. Independent of parties in the national legislature itself, as often as the *238period of discussion arrived, the state legislatures, who will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens, against incroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if any thing improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent.
McLean supra, vol. I at 165-66.
An examination of the military judiciary, although similar to its civilian counterpart in the importance and scope of its duties, also reveals marked dissimilarities from a civilian judiciary because of the ever-existent potential for military exigencies. “Military exigencies” is not a term of art; our armed forces are not a garrison force. In the past 4 years alone, our military men and women have deployed to Panama in Operation Just Cause and to Southwest Asia in Operations Desert Shield and Desert Storm. In addition, they have participated in the humanitarian mission to aid Kurdish refugees, Operation Provide Comfort, following Operation Desert Storm. Even as this opinion is being released, our troops are serving in Somalia as part of a relief effort called Operation Restore Hope.
These missions require worldwide deployment and the need for instant mobility and flexibility in assignments, including military judge assignments. Military judges must try cases in combat environments, and, due to the potential for military judge casualties, replacements must be available at a moment’s notice. The ever-expanding role of the military only underscores the wisdom of our Founding Fathers in entrusting Congress with the authority and responsibility for providing for its day-to-day operations.2
In carrying out its enumerated responsibilities Congress has paid careful attention to the military justice system. Starting in 1950 with the adoption of the Uniform Code of Military Justice, Congress has been very active in expanding the status and power of the military judge. In 1950, Congress provided for the law officer who was the forerunner of the military trial judge. See Pub.L. No. 81-506, 64 Stat. 117. In the Military Justice Act of 1968, Pub.L. No. 90-632, 82 Stat. 1335, Congress provided for military judges (at 1336) and the Courts of Military Review (at 1341). See generally Cox, The Army, The Courts, and The Constitution: The Evolution of Military Justice, 118 Mil.L.Rev. 1 (1987); Criminal Law Note: An Ongoing Trend: Expanding the Status and Power of the Military Judge, The Army Lawyer 23 (Dept, of the Army Pamphlet 27-50-239, October 1992).
In addition to his or her constitutional role as Commander-in-Chief, U.S. Const, art. II, § 2, the President has a specific role for military justice matters. Pursuant to its authority under the Constitution, Congress, through Article 36(a), Uniform Code of Military Justice, 10 USC § 836(a) (1979), has given the President the authority to prescribe “[pjretrial, trial, and post-trial procedures, including modes of proof, for ... [trials by] courts-martial.” Based on this delegation of authority from Congress, the President has by Executive Order set forth many rules in the Manual for Courts-Martial, United States, 1984, that pertain to the authority of the military judge. See generally 1 F. Gilligan and F. Lederer, Court-Martial Procedure 514-56 (1991).
In fulfilling its responsibilities, Congress has been mindful of the interests sought to be protected by the Appointments Clause. First, with respect to selection of qualified individuals to serve as military judges, Congress has determined that these assign*239ments be made by the Judge Advocate General of each service who has direct responsibility for military justice within his or her respective service.3 Congress has implicitly recognized that the Judge Advocates General are uniquely situated to determine which officers are best qualified within their respective services to serve as both trial and appellate judges. Moreover, these same individuals have by necessity great flexibility to make these assignments4 quickly in a combat environment where casualties or other exigencies may affect the military judiciary.
Second, with respect to establishing a system of checks and balances between the Executive and Legislative branches, it is difficult to see how the present system of assigning military judges jeopardizes that delicate balance. If anything, the creation by Congress in 1951 of the United States Court of Military Appeals, a federal civilian court subject to the Appointments Clause, which reviews decisions of the military judiciary, more than satisfies any concerns in that regard. See 64 Stat. 129. Additionally, effective August 1, 1984, Congress provided in Article 67(h)(1), UCMJ, 10 USC § 867(h)(1), now Article 67a, UCMJ, 10 USC § 867a (1989), that decisions of our Court are reviewable by the Supreme Court of the United States by writ of certiorari, Military Justice Act, Pub.L. No. 98-209, § 10(c)(2), 97 Stat. 1393, 1406, thereby providing the ultimate check on judicial decisions of the military justice system.
If there is dissatisfaction with the military justice system as it exists today, it can be changed or modified by the majoritarian process. That is, the elected representatives of Congress, in consultation with the Executive branch, have the power to make any necessary changes. But this Court must not, by judicial fiat, impose the procedures intended for a federal civilian judiciary upon the military under the guise of the Constitution. To do so would be to ignore the constitutional deference given to Congress by our Founding Fathers because of the realities and practicalities of national security exigencies.
D. Special Deference
Based on the intent of the Framers, the Constitution, and Federal statute, the Supreme Court has given great deference to the authority of Congress and the President in military matters. The Supreme Court has repeatedly recognized the power of Congress to provide for military justice. Judge Grace in United States v. Prive, 35 MJ 569, 573-74 (CGCMR 1992), has listed some of those decisions as follows:
Dynes v. Hoover, 61 U.S. (20 How.) 65, 79, 15 L.Ed. 838 (1858) (“These provisions show that Congress has the power to provide for the trial and punishment of military and naval offenses in the manner then and now practiced by civilized nations ____”).
Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123, 18 L.Ed. 281 (1866) (“Congress has declared the kinds of trial [for offenses by soldiers] and the manner in which they shall be conducted____”).
*240Parker v. Levy, 417 U.S. 733, 743, 94 S.Ct. 2547, 2555, 41 L.Ed.2d 439 (1974) (“This Court has long recognized that the military is, by necessity, a specialized society separate from civilian society____ [T]he military has, again by necessity, developed laws and traditions of its own during its long history.”)
Schlesinger v. Councilman, 420 U.S. 738, 757, 95 S.Ct. 1300, 1313, 43 L.Ed.2d 591, 609 (1975) (“The laws and traditions governing [military] discipline have a long history; ... they are founded on unique military exigencies as powerful now as in the past. Their contemporary vitality repeatedly has been recognized by Congress.”)
Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 66, 102 S.Ct. 2858, 2869, 73 L.Ed.2d 598 (1982) (“[T]he exercise by Congress and the Executive of the power to establish and administer courts-martial ... involves a constitutional grant of power that has been historically understood as giving the political Branches of Government extraordinary control over the precise subject matter at issue.”)
In United States v. Prive, supra at 576, Judge Grace summarized the effect of these decisions on the present issue by paraphrasing a statement from Northern Pipeline as follows:
[T]hese precedents [of the Supreme Court] “represent no broad departure from the constitutional command that” appointments must be made in accordance with the Appointments Clause. Rather, they reduce to a narrow situation not subject to that command, that “recogniz[es] a circumstance in which the grant of power to the Legislative and Executive Branches was historically and constitutionally so exceptional that the congressional assertion of power” to designate military judges outside of the provisions of the Appointments Clause “was consistent with, rather than threatening to, the constitutional mandate of separation of powers.’’
See 458 U.S. at 64, 102 S.Ct. at 2868 (emphasis added).
Judge Grace also relied on this statement from Solorio v. United States, 483 U.S. 435, 447, 107 S.Ct. 2924, 2931, 97 L.Ed.2d 364 (1987):
Decisions of this Court after O’Callahan [v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969)] have also emphasized that Congress has primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military. As we recently reiterated, “ ‘[j]udicial deference ... is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.’ ”
(Emphasis added and citations omitted.)
I agree with the Coast Guard Court of Military Review and “conclude that Congress, in legislating for the land and naval forces, may provide for the designation of judges within the military justice system in a manner not provided for in the Appointments Clause of the Constitution.” 35 MJ at 577.
. No. 78, "A VIEW OF THE CONSTITUTION OF THE JUDICIAL DEPARTMENT IN RELATION TO THE TENURE OF GOOD BEHAVIOR,” wherein Hamilton discusses "the doctrine of judicial review,” stating: "Whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former."
No. 79, "A FURTHER VIEW OF THE JUDICIAL DEPARTMENT IN RELATION TO THE PROVISIONS FOR THE SUPPORT AND RESPONSIBILITY OF THE JUDGES," wherein Hamilton expresses "[tjhoughts on the salary, tenure, accountability, and age of judges.”
No. 80, "A FURTHER VIEW OF THE JUDICIAL DEPARTMENT IN RELATION TO THE EXTENT OF ITS POWERS," wherein "Hamilton traces the outlines of the judicial power."
No. 81, "A FURTHER VIEW OF THE JUDICIAL DEPARTMENT IN RELATION TO THE DISTRIBUTION OF ITS AUTHORITY," wherein Hamilton “states the case for a distinct, learned, independent Supreme Court, then speculates on the relations of the Supreme Court to the lower courts.”
No. 82, “A FURTHER VIEW OF THE JUDICIAL DEPARTMENT IN REFERENCE TO SOME MISCELLANEOUS QUESTIONS," wherein Hamilton discusses "the relations of the federal and State courts.”
No. 83, “A FURTHER VIEW OF THE JUDICIAL DEPARTMENT IN RELATION TO THE TRIAL BY JURY," wherein "Hamilton attempts ... to quiet the fears of' some with a discussion "of this ancient 'palladium of free government.’ ”
The Federalist Papers, xxx-xxxi (A. Hamilton, J. Madison, J. Jay)(C. Rossiter 1961).
. For example, if during Desert Shield/Storm a scud missile hit a barracks housing one or more judges from the services, replacements would be needed immediately. A service Judge Advocate General looking for qualified individuals might select an individual from the Court of Military Review. Likewise, if there was a heavy case load before the Court of Military Review, for example, a series of classified cases, the Judge Advocate General should have the flexibility of assigning a trial judge not involved with those cases to the appellate court.
. Article 26(c), Uniform Code of Military Justice, 10 USC § 826(c), provides: “The military judge of a general court-martial shall be designated by the Judge Advocate General, or his designee, of the armed force of which the military judge is a member____”
Article 66(a), UCMJ, 10 USC § 866(a), provides: “Each Judge Advocate General shall establish a Court of Military Review which shall be composed of one or more panels, and each such panel shall be composed of not less than three appellate military judges.”
See also Morgan, The Background of the Uniform Code of Military Justice, 6 Vand.L.Rev. 169 (1953); Comments, Military Justice and the Constitution — Improvements Offered by the New Uniform Code of Military Justice, 29 Tex.L.Rev. 651 (1951).
. Article 6(a), UCMJ, 10 USC § 806(a), states:
The assignment for duty of judge advocates of the Army, Navy, Air Force, and Coast Guard shall be made upon the recommendation of the Judge Advocate General of the armed force of which they are members. The assignment for duty of judge advocates of the Marine Corps shall be made by direction of the Commandant of the Marine Corps. The Judge Advocate General or senior members of his staff shall make frequent inspections in the field in supervision of the administration of military justice.