(concurring):
I agree with Chief Judge Sullivan’s resolution of the granted issue. I write separately only to elaborate on my reasons for joining the principal opinion.
I agree that the Judge Advocate General’s record on certified issues does not reflect prosecutorial bias. Government counsel do not have the opportunity afforded to an appellant to petition this Court for relief from an adverse decision of the Court of Military Review. Therefore, the only opportunity for government counsel to obtain relief from an adverse decision is to request the Judge Advocate General to certify the issue. If the number of “defense” issues were anywhere near the number of “prosecution” issues certified, I would suspect that something was seriously wrong. There should be very few “defense” issues certified if appellate defense *147counsel are raising the right issues and this Court is granting review of the right cases. In short, the rarity of certified “defense” issues should be the norm if the system is working properly.
Finally, I do not believe that the Judge Advocate General was transformed into a prosecutor merely because government counsel claimed a work-product privilege for documents um-elated to appellant’s case. Government counsel were wrong. Their client is the United States, not the Judge Advocate General.
COX, Judge (dubitante):
I have no quibble with the facts, law, and excellent reasoning set forth in the principal opinion. I simply question whether Congress intended for the United States Court of Military Appeals to sit in abstract philosophical judgment of the structure of the military departments, especially in a case where an appellant has pleaded guilty to the charges against him and has alleged no error in his special court-martial proceedings. Given our recent willingness to entertain such systemic attacks, however, I feel certain that we will be called upon to examine many more variations on this stock theme of Military Justice is to Justice as Military Music is to Music by Robert Sherrill, published in 1970. I would leave questions of how the military should be organized and administered to the Executive and Legislative branches of Government, as envisioned by the Constitution.
Furthermore, in light of the following statement in Weiss v. United States, — U.S. -, -, 114 S.Ct. 752, 762, 127 L.Ed.2d 1 (1994), I question whether appellant’s petition was providently granted:
Article 26 [,Uniform Code of Military Justice,] places military judges under the authority of the appropriate Judge Advocate General rather than under the authority of the convening officer. 10 U.S.C. § 826. Rather than exacerbating the alleged problems relating to judicial independence, as petitioners suggest, we believe this structure helps protect that independence. Like all military officers, Congress made military judges accountable to a superior officer for the performance of their duties. By placing judges under the control of Judge Advocates General, who have no interest in the outcome of a particular court-martial, we believe Congress has achieved an acceptable balance between independence and accountability.
See also United States v. Graf, 35 MJ 450 (CMA 1992), cert. denied, — U.S.-, 114 S.Ct. 917, 127 L.Ed.2d 206 (1994).
Having said all that, I personally, like my sister and brothers, doubt the services’ wisdom in leaving themselves open to the inevitable charge that judges are retained in service, promoted in grade, and given future assignments, at least in part, on the basis of some higher-up’s approval of them performance as a judge. The irony is that the essence of good politics and government requires that civilian jurists be selected (elected/appointed), promoted, and given increased responsibilities and assignments on the basis of perceived merit. In the eyes of some, obviously, the military must be barred from attempting same.
WISS, Judge (concurring in part, dissenting in part, and concurring in the result):1
The majority purports to limit to the facts, of this case its consideration whether a rea*148sonable person might question the impartiality of appellate military judges who function under the Navy’s officer evaluation system. In doing so, however, the majority takes giant strides in reaching conclusions that largely absolve these judges in a systemic manner. Then, finding nothing idiosyncratic about this case that is legally alarming, but cf. 39 MJ at 145 n. 8, the majority gives its blessing to the decision of the Court of Military Review — but ends with reflections that not-so-subtly imply that the professional horns of a dilemma on which these appellate judges find themselves may present an appearance that is not so satisfactory, after all.
My analysis follows a similar progression but, in contrast, essentially is in the opposite direction. Regrettably, I must candidly acknowledge the serious flaws in the fitness-report system that relate to the challenge here to the appearance of impartiality of these appellate judges and then, in that context, inquire whether a reasonable person might question the judges’ objectivity in this particular case. In the process, I ultimately get to the same finishing point in this case as the majority, but my course there is starkly different.
I
RCM 902(a), Manual for Courts-Martial, United States, 1984, commands: “[A] military judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned.” Title 28 USC § 455(a), from which RCM 902(a) was borrowed, see Drafters’ Analysis, Manual, supra at A21-46, substantively is identical: “Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” As we have said: “This standard is objective.... Thus, the test is whether a reasonable person who knew all the facts would question [the judges’] impartiality.” United States v. Kincheloe, 14 MJ 40, 50 (CMA 1982) (citations omitted); accord, e.g., United States v. Cooley, 1 F.3d 985, 993 (10th Cir.1993).
It would seem, then, that the first task would be to identify our hypothetical “reasonable person.” By definition, since he is in possession of “all the facts,” that person is neither irrationally jaundiced against the fairness of the military justice system nor, just as importantly, dogmatically indoctrinated in support of it. Rather, the person has sufficient rationality, experience, and distance to objectively permit a view of the system through clear lenses, which hide neither the system’s strengths nor its flaws.
Thus defined, what does our reasonable person think about all this? The majority relies upon four “fact[s] or eireumstance[s] of which a reasonable observer would be aware” to justify its conclusion “that a reasonable person could not question the impartiality of the appellate military judges____” 39 MJ at 144. In my view, our reasonable person would not be satisfied with either the quality or the limitation of the four factors selected by the majority.
A
First, the majority points out the obvious: The person being evaluated here is a military judge — “a military officer who has sworn to do his duty under law____” 39 MJ at 144. Such chest-pounding adds little to the balance. A similar type of claim that seems to suggest some sort of inherent integrity may be made of most any judge in most any judicial system in this country.
Moreover, the reports of decisions of this Court for the past four decades are peppered with instances of honorable persons — line officers, lawyers, judges, and even high-ranking officers of the Judge Advocate General’s Corps — who affected the trial or appeal of cases in ways in which they undoubtedly at the time believed were permissible but which this Court ultimately condemned. Parenthetically, while our reasonable person knows that violation of this sworn duty “could ... expose these military officers to criminal liability under the Uniform Code of Military Justice,” 39 MJ at 144-45, our reasonable person also knows that there is no reported *149prosecution of any officer for any of the transgressions just mentioned. But cf. H. Moyer, Justice and the Military § 3-361 at 779-80 (1972).
Thus, the first factor upon which the majority relies begs the question: If such a person of apparent integrity who is sworn to do his duty under law is placed in a situation in which his own personal and professional future might seem to depend upon doing his duty in a particular fashion, is our hypothetical reasonable person troubled by such a psychological tug of war?
Second, the majority then reminds us that, regardless of who prepares or signs a judge’s fitness report, the evaluator legally “could not consider the judge’s findings or sentencing decisions.” 39 MJ at 145. I know that is the law, see United States v. Mabe, 33 MJ 200 (CMA 1991). Further, in the absence of contrary evidence, I am willing to presume that the Judge Advocate General and others involved in this process are men and women of integrity who know and will follow the law.
Candidly, however, the picture is far from focused as to what are the criteria on which appellate judges are rated — officers whose full-time job is to make findings and sentencing decisions. More than one judge below expressed pointed concern in this regard. See infra. I cannot help but wonder whether our reasonable person would be so fully assuaged as the majority when faced with the fact that, while judges cannot lawfully be rated on their findings and sentencing decisions, year in and year out they are rated against some criteria and on some basis — the nature of which even the appellate judges below in this case expressed uncertainty and reservations.
The third “fact or circumstance”' relied upon by the majority is a legitimate consideration. True, a military judge who feels importuned upon does have legal remedies available, and to'be sure judges have on occasion sought their refuge. See, e.g., United States Navy-Marine Corps Court of Military Review (hereafter NMCMR) v. Carlucci, 26 MJ 328 (CMA 1988). Equally it is true that no judge in this case disqualified himself because of the fitness-report system.
I cannot help but wonder, though, whether our hypothetical reasonable person might find this a bit circular: The availability of certain protections against influence that assuredly require intestinal fortitude to invoke would not seem to offer substantial assurance that all judges who might not make that measure of fortitude could resist the improper influence. In other words, the irony is that judges who are of such character that they would invoke the remedies are the very judges who likely would resist the influence — and vice versa. After all, each of us is different from the other in the whole panoply of traits, and steeliness of resolve is no exception. I think our hypothetical person is not so naive as to be unaware of this realization.
The final factor pointed to by the majority is that no judge in this case expressed the personal view that either the Judge Advocate General (JAG) or the Assistant Judge Advocate General for Military Law (AJAG) generally was biased for the prosecution and that this appellant has pointed to nothing in particular in this case to suggest that the judges who sat on his appeal actually might be biased. That certainly is true; but, of course, if it were not, we would have little occasion to concern ourselves with appearances of partiality to our reasonable person — recusal of the judges pretty clearly would be required. See ROM 902(b)(1); 28 USC § 455(b)(1). Accordingly, absence of this factor likely would spell doom to the integrity of the decision below, but presence of it is not much affirmative comfort.
In this evaluation of the majority’s four considerations, I do not mean to suggest that any particular person, whether judge or Judge Advocate General, lacks appropriate strength of character to do .the right thing. Neither do I mean to suggest that the four factors are not legitimate considerations. I do mean, however, to put those four factors in perspective and to put appropriate distance between particular judges and Judge Advocates General, on the one hand, and our hypothetical reasonable person, on the other — thereby achieving some measure of objectivity.
*150B
The majority’s analysis of the reasonable person’s view of this matter suffers additionally from failure to put onto the scale several other factors that the majority expressly or implicitly acknowledges elsewhere in its opinion. It suffers, too, from oversight of the public record with regard to those factors. The assault on the system no longer depends upon hypothetical horror stories; instead, the parade of horribles now is documented, and the cries for reform appear to be compelling.
Example: A former judge of the Court of Military Review, an officer with extensive military justice experience, openly and in a sworn affidavit has averred his belief that his performance evaluation — and consequently his assignments and his promotion prospects — were adversely affected by his role in NMCMR v. Carlucci supra. The fact that that judge did not sit on appellant’s appeal, as the majority notes, does not detract from the impact of this document on the shaken confidence in the system of our reasonable person.
Example: The then-AJAG has sworn in his own affidavit that, when he told this same judge that he was being reassigned from the court at a point well short of the usual 3-year tour of duty, but see United States v. Graf, 35 MJ 450 (CMA 1992), cert. denied, — U.S. -, 114 S.Ct. 917, 127 L.Ed.2d 206 (1994), that judge threatened to “use Billig[2] to prevent the move from taking place.” The affiant’s purported response was to return to his office and cancel the planned transfer, even though he insists that the transfer was for sound and articulable reasons other than the judge’s judicial performance.
Example: The newly assigned AJAG was, before that assignment, a military judge in, presumably, a good number of cases which likely will be reviewed by the Court of Military Review while that officer is AJAG. In one such case presently pending in that court, United States v. Larson, NMCMR No. 92-1621, the accused has challenged several rulings of the military judge at his court-martial. Thus the mix: The military judge who the Court of Military Review is being asked to hold committed prejudicial error is now the officer who writes the fitness reports on all judges on that court for the JAG’s signature and, as well, is the officer who is in the same rating group as the Marine judges on that court and who ranks himself in comparison to those judges in his draft recommendation to the JAG.
Example: The convening authority in United States v. Larson, supra — a ease in which the accused also alleges prejudicial post-trial delay of 198 days between the end of his trial and that convening authority’s action — was the same officer who now is the Assistant Commandant of the Marine Corps — the reviewing officer for the fitness reports of the Marine judges on the Court of Military Review.
Example: The various opinions below in this case, 37 MJ 903 (1993), clearly reflect the judges’ substantial discomfort concerning the perception of their impartiality, given the structural flaws discussed earlier. Just a few illustrations:
Suffice it to say that we acknowledge that such an appearance [problem] may exist [from the fitness report system], and we urge the Judge Advocate General to examine the process with a view to ensuring that those who participate in it occupy positions less directly affected by the decisions of this Court____
37 MJ at 917 n. 14 (emphasis added). The opinion goes on to say:
We also invite the JAG’s attention to two other aspects of the process that may contribute to an unhealthy appearance: 1) The AJAG is include with the Court’s Marine judges for comparison rankings, yet he is the officer who submits recommendations for their reports, and 2) the reviewing officer for Marine judge fitness reports is the Assistant Commandant of the Marine Corps. In our opinion, the latter fea^ *151ture is not consistent with the concept of judicial independence and the inherent conflict in the first aspect tends to detract from the integrity of the fitness report process as a whole.
Id. at 917 n. 14 (emphasis added). Other judges stated:
Unless the rating and ranking of appellate military judges is accomplished by the Judge Advocate General based on clearly stated criteria applicable to their unique, independent function in the military (and only with the assistance of persons having no arguable interest, official or otherwise, in the outcome of cases before the Court), military appellate review will not enjoy the confidence in its integrity and independence that Congress and the public require ____
Id. at 921 (Mollison, J., joined by Orr, S.J., and Lawrence, J., concurring in part and in the result)(emphasis added). Another judge stated:
Thus, when the JAG needs input on the performance of military appellate judges he logically turns to the person he has designated as responsible for military justice matters, the AJAG. However, because of his own interest in the outcome of the fitness report system and his possible disagreement with opinions from this Court, in submitting recommendations the AJAG is placed in an untenable and possibly compromising position.
Id. at 930 (Reed, J., concurring in the result) (emphasis added).
Example: Even though this Court in United States v. Mabe, 33 MJ 200 (1991), held that military judges may not be rated in their fitness reports by using their decisions and sentencing as benchmarks, military judges (trial and appellate) continue to be rated “in several key areas of performance, including some arguably relevant to this issue, such as loyalty (USMC), cooperation (USMC), organizational support (USN), working relations (USN), and judgment (both).” 37 MJ at 905. Yet, as suggested earlier in this opinion, it is far from clear how a judge’s fitness can overlay these yardsticks without violating Mabe, and the appellate judges below at several points expressed such uncertainty as to precisely how and upon what lawful bases their performance is evaluated. See, e.g., 37 MJ at 917 n. 14; at 921 (Freyer, S.J., concurring); at 924 (Reed, J., concurring in the result). One judge even went so far as to suggest:
The practice of ranking appellate judges should be discontinued. In the absence of specific objective criteria, “an objective, disinterested observer fully informed of the facts would entertain a significant doubt that justice was being done” and would perceive an appearance of command influence.
37 MJ at 930-31 (Reed, J., concurring in the result)(footnote omitted).
In a letter to the President of the United States dated July 21, 1992, the American Judges Association submitted:
It is the sense of the American Judges Association that our Judicial Brethren [in uniform] are not adequately protected from the bureaucracy of the military organization under existing service personnel
policies and applicable legislation____
I have attached a copy of that letter as Appendix A to this opinion so that all may see for themselves that this group of largely state and local civilian judges has a sound grasp of the military justice system and a reasonable, moderately expressed sensitivity to the imperative of judicial independence— and to the perception of compromise of that imperative in the instance of military judges. The force of the views and to the call for reform from an organization such as this is imposing.
That is the documented public record. It can no longer be claimed, in the face of such stark evidence to the contrary, that the present structure does not have the potential for corroding confidence in our system of justice.
C
As was reported in the January 1993 issue of Military Justice Gazette (published by the National Institute of Military Justice), the Chief Judge of this Court requested an advisory opinion from the Committee on Codes of *152Conduct of the Judicial Conference of the United States in June 1992. The opinion he sought addressed what he described as a “serious conflict of interest in the judicial reappointment system of our Court” that “was exposed in 1990 by the Federal Court Study Committee” and that has been “recognized” by the “American Bar Association and other public entities.”
“In order to reduce the conflict to practical application,” the Chief Judge posed a hypothetical situation to the Advisory Committee. The full text of the Chief Judge’s letter and the response from the Advisory Committee may be read in the copy of the Gazette that is Appendix B to this opinion.
In essence, the hypothetical portrayed a Judge of this Court who is near the end of the Judge’s term of office and who desires reappointment. The Judge realizes that the Department of Defense (DoD), a component of which is a party in every case before the Court, “has the responsibility for recommending to the President individuals to be appointed to” this Court; and the Judge is concerned that the “pending reappointment request will be perceived as a personal bias toward the Department of Defense” in a very-high-visibility case on which the Judge soon will sit — an adverse decision in which might “seriously undercut” a top-level, controversial DoD policy.
The Advisory Committee responded, in pertinent part, as follows:
Canon 3C(1) of the Code [of Conduct for United States Judges, which the United States Court of Military Appeals has adopted], provides that a judge should recuse in any case in which the judge’s impartiality might reasonably be questioned. We believe that a litigant opposing the Department of Defense in a case before your court might reasonably question the impartiality of a judge to sit on his case when the judge is seeking the approval of the Department of Defense for the judge’s reappointment. Accordingly, we would advise that Canon 3C(1) requires recusal in the situation you describe.
It is not immediately apparent to me how the personal and professional predicament in which the Court of Military Review judges are placed is any less compromising. The difficulty is not in whether either the Judge on this Court in the scenario described to the Advisory Committee or a judge on the Court of Military Review in the context that I have set forth actually is swayed. Rather, it is whether, from an objective viewpoint, a reasonable person would question the judge’s impartiality.
By way of postscript of sorts to my treatment of the appearance problem that engulfs the fitness-report system applied to Navy and Marine appellate judges, let me conclude by quoting the following reflection and exhortation from the separate opinion below by Senior Judge Freyer:
The old (and quaintly gender-specific) fitness report form, NAVPERS 1611/1 (Rev. 12-69), contained a marking category called “moral courage,” which it defined as “To do what he ought to do regardless of consequences to himself.” When all is said and done, that is what was required of a military trial or appellate judge before Mabe and Graf, and it is equally required now. As desirable as moral courage may be, however, the presupposition that there should be adverse consequences to oneself for doing what one ought to do suggests that something is wrong. The administrative framework in which the military judiciaries operate should promote judicial independence affirmatively, not by taxing the moral courage of the judges to compensate for adverse structural conditions, which, by their very existence, create a perception of judicial self-interest in the outcome of decisions among the judges themselves, accused, and members of the public.
37 MJ at 921.
II
Two different approaches suggest themselves toward resolving this issue. The first is to acknowledge the flaws in the fitness-report system that relate to the challenge here to the appearance of impartiality of the appellate military judges and proceed to determine, in each and every ease and in the *153unique context of that case, whether indeed a reasonable person might question the judges’ impartiality in light of those flaws. The second is to acknowledge those same flaws and to conclude that they constitute such a serious compromise of the insulation of neutrality that should enshroud the Court of Military Review that they permeate the whole atmosphere in which the judges of that court do their work and thereby undermine the appearance of reliability in their decisions. See United States v. Allen, 33 MJ 209 (CMA 1991); United States v. Thomas, 22 MJ 388 (CMA 1986), cert. denied, 479 U.S. 1085, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987).
Ultimately, I am persuaded that a case has not been made that warrants the second approach. As the majority opinion points out in a footnote, 39 MJ at 146 n. 9, we have been assured by counsel for the Government that changes are underway that purportedly will address the more glaring problem areas in this system of fitness reports for the judges. In this context of apparent efforts to resolve the problem, I am willing to restrain the scope of judicial probing to those cases in which an appellant urges that his review by that court has been compromised in some manner by the problems uncovered here.
As the majority indicates, this appellant has made no such special claim here. Although our hypothetical reasonable man knows all of the facts and circumstances that I have discussed, supra, I am satisfied that nothing about this particular case should cause him to question the objectivity that the appellate military judges brought to their consideration of this appeal. On that basis, I join the disposition ordered by the majority.
*154APPENDIX A
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*155Similarly, the perception exists that judges who make rulings unpopular with military hierarchy are endangering their possibilities of promotion because that same hierarchy is the system which makes selections for promotion.
To_protect military- judges__fxnm-. the possibility of such action, we are of the opinion that a legislative "fix" should-be passed to eliminate the perception that a military judge could fall victim to retribution because of’unpopular-judicial, decisions . In the day of the declining military presence and involuntary selective early retirements for military personnel, it is recommended that officers screened and selected_ior — Judicial assignments at the rank of“Tlt^oionei/Commander be exempt from the Selective Early Retirement program, and’thatas. members of the Judicial Profession, they -be-guaranteed promotion to 0-6 (Colonel or Navy Captain) and tenure to complete a 30 year career, should the Judge elect to remain on active duty, as a Judge, until he or she reaches the 30 year mandatory retirement date.
In the alternative, or in conjunction with the foregoing recommendation, a legislative "fix" should be considered wherein the Chief Judges of the service Trial Judiciaries, and the Chief Judges of the Service Appellate Courts be: 1) selected as General/Admiral (0-7) to ensure that they are immune to the pressures of service promotion and retention systems, or 2) that the Chief Judges be retired at the rank of General/Admiral (0-7), with or without retired pay at the rank of General/Admiral.
It is the sense of the American Judges Association that our Judicial Brethren are not adequately protected from the bureaucracy of the military organization under existing service personnel policies and applicable legislation. To achieve separate, independent status the AJA deems healthy for any Judiciary, the 145 or so officers presiding over the criminal trials must be guaranteed a capability to function within, but independent of the military organizations they serve.
Military Judges are a small group of professionals, selected and designated as Judges to ensure that the perceived evils of the military justice system, as manifested in some notorious trials of the past, cannot occur in modern time.
Because these dedicated men and women deviate from a normal career pattern in order to ensure justice within the military community, they should enjoy protected careers, just as they protect the rights of persons and parties appearing in their courts. Guaranteed promotions, based on the judicial selection process, and assured status (tenure) until retirement is not too much to urge on the lawmakers and policy makers of our great nation.
Respectfully Richard Lee Price
*156APPENDIX B
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MILITARY JUSTICE GAZETTE
Published Occasionally by the NATIONAL INSTITUTE OF MILITARY JUSTICE_
No. 5 Washington, D.C. January 1993
NEWBOOKS
Two new books have appeared on military justice. The first is Professor David A. Schiueter’s third edition of Military Criminal Justice: Practice and Procedure, available from Michie Company, in Charlottesville. The other is the first volume of Arming Military Justice, Professor Jonathan Lurie’s history of the Court of Military Appeals, published by Princeton University Press. The title of volume one is The Origins of the United States Court of Military Appeals, 1775-1950 Volume two is in progress. On a sadder note, we now report that, as feared, the Military Law Reponer has been discontinued as a result of reduced subscriptions.
BAR NEWS
Ca2ene No. 4 reported that Coast Guard appellate defense counsel G Arthur Robbins (now in private practice) had submitted to the Joint Service Committee on Military Justice a proposal for Manual changes. A report and recommendation on this subject by the ABA Standing Committee on Military Law will be considered by the House of Delegates in Boston in February. Report No. 107A urges amendment of RCM 1112 and 1201(b) "to ensure that convicted service members have the right to review and comment on all stages of military administrative review of their case" and amendment of RCM 1203(c) "to provide for the opportunity for convicted service members to review and submit petitions to the appropriate service Judge Advocate General for certification of a case to the United States [Court] of Military Appeals."
ESTREET
1. Advisory Opinion of Judicial Conference Committee on Codes of Conduct.
June 22, 1992
To the Comminee on Codes of Conduct of the Judicial Conference of the United States
Dear Judge and Committee Member:
I request an advisory opinion on a conflict of interest question that could appear before the Court on which I sit. This advice will help me devise legislation to resolve the perceived conflict. Some background information. I am the Chief Judge of the only Article I Federal appeals court. Our Judges serve a 15 year term and can be reappointed by the President with the Advice and Consent of the Senate. As you know, our jurisdiction covers criminal appeals from Federal convictions by court martial in the Armed Services. There are usually only two parties in every appeal, the appellant (setvicemember) and the Government (the Department of Defense). Some of the cases we review involve the most serious Federal crimes including murder, rape, and espionage. I am told we now have nine capital murder cases in the military justice system. In each of the past two years we have handled a death penalty case. Congress has given the Chief Justice the power to designate Article III judges to sit on our Court in the event of a recusal of one of our Judges. This recusal procedure has been easily utilized several times in the last two years and with great success. Judges Sentelle, Wilkins, and Sporkin have sat with our Court using this procedure.
A serious conflict of interest in the judicial reappointment system of our Court was exposed in 1990 by the Federal Court Study Committee. The American Bar Association and other public entities have also recognized and are concerned with this conflict of interest. In order to reduce that conflict of interest to practical application, I seek an advisory opinion of the Commil'-.e on Codes of Conduct for the following question:
A United States Court of Military Appeals Judge (56 years old) is in the 14th year of her 15 year term appointment. The Judge is eligible and qualified for reappointment and has decided to seek reappointment. It is a matter of public knowledge that the Judge has requested the Department of Defense to reappoint her pursuant to [10 USC § 942]. The Department of Defense has the responsibility for recommending to the President indi*157viduals to be appointed to any vacancies on the U.S. Court of Military Appeals.
Pg. 2 M.J. GAZ. No. 5
If the Judge is reappointed, her salary would remain at the present $137,300 level. If the Judge is not reappointed, she would receive no salary and $109,800 as an annuity. The Judge learns that one of the next month’s oral argument cases is an important, high visibility case for the Department of Defense. If the Government loses, the outcome of the case may seriously undercut the Department of Defense’s policy banning homosexuals serving in the military. The Judge is concerned that her pending reappointment request will be perceived as a personal bias toward the Department of Defense. Should this Judge recuse herself from sitting on this case? ...
EUGENE R. SULLIVAN
COMMITTEE ON CODES OF CONDUCT OF THE JUDICIAL CONFERENCE OF THE UNITED STATES
Re: Docket No. 891 July 6, 1992
Dear Chief Judge Sullivan:
You ask our advice as to whether a judge of your court should recuse him or herself in a case involving the Department of Defense where the judge’s 15-year term on the court is about to expire and the judge has made known a desire to be reappointed. You advise that, as a matter of consistent practice, reappointments to your court are made by the President only upon recommendation of the Department of Defense and that while a retired judge of your court is entitled to a pension, that pension is substantially less in amount than the salary a judge would receive as a result of a reappointment to your court. You further indicate that the judges of your court have (1) adopted the Code of Conduct for United States Judges as a source of standards of conduct for judges of your court and (2) requested our Committee to give advice regarding the application of that Code upon the request of any member of your court.
Canon 3C(1) of the Code provides that a judge should recuse in any case in which the judge’s impartiality might reasonably be questioned. We believe that a litigant opposing the Department of Defense in a case before your court might reasonably question the impartiality of a judge to sit on his case when the judge is seeking the approval of the Department of Defense for the judge’s reappointment. Accordingly, we would advise that Canon 3C(1) requires recusal in the situation you describe.
WALTER K. STAPLETON
2. Judicial Terms of Office. The Court ruled in United States u Graf that due process does not require that judges have fixed terms of office. A petition for certiorari was filed on December 28. 1992.
3. Judicial Appointments. In United States u W^iss, the Court on December 21. 1992 rejected the contention that the arrangements under which military trial and appellate judges serve violate the Appointments Clause of the Constitution. There were four opinions, none of which commanded a majority. The vote to affirm was 3-2.
RULE CHANGE PROPOSALS
The Appellate Government Division of the Navy-Marine Corps Appellate Review Activity is proposing a change in the Court’s Rules regarding the precedential effect of memorandum actions. It is to be assumed that this proposal, the National Institute’s January 1952 proposal concerning petitions for review that die no errors, and a suggestion that the time limit for extraordinary relief petitions should not apply to error coram nobis will be referred to the Rules Advisory Committee.
National Institute of Military Justice c/o Kevin J. Barry, Esq.
13406 Sand Rock Court
Chantilly, Virginia 22021
. Except to the extent that, on limited occasion, the text of my opinion is in conflict with Parts I and II of the majority, I concur in those Parts that dispose of appellant's constitutional argument. In that connection, I agree that our general approach in United States v. Graf, 35 MJ 450 (CMA 1992), cert. denied,-U.S.-, 114 S.Ct. 917, 127 L.Ed.2d 206 (Jan. 24, 1994), controls. I dissent, however, from sections III and IV— sections that are not fairly based on our resolution of the constitutional due process issue in Graf. As to section V, of course I agree with the expressions of concern there. I pointedly do not agree, however, that these concerns are not a proper subject of this Court’s consideration and, if need be, remedy. Appellant has argued that the flaws that I believe exist in the fltness-report system would lead a reasonable person to question the impartiality of the appellate judges who reviewed his case. Whether the fitness-report system is good or could be better, of course, is not our concern; it surely is our concern, though, whether it creates the fatal appearance *148that is set out in RCM 902(a), Manual for Courts-Martial, United States, 1984, and 28 USC § 455(a).
. United States v. Billig, 26 MJ 744 (NMCMR 1988)(en banc), was the decision of the Court of Military Review that precipitated the events leading to NMCMR v. Carlucci, 26 MJ 328 (CMA 1988).