Judicial Watch appeals Adm. Route's dismissal of its complaint

The echos haven't faded away, but I think the fat lady has basically already sung on Judicial Watch's challenge to John Kerry's medals.

When I was a law clerk for a judge on the United States Court of Appeals for the Fifth Circuit, one of my regular duties was to review, and advise my judge upon, pending petitions for rehearing en banc.  Then as now, each appeal in the Fifth Circuit was normally heard by a three-judge panel selected at random.  Before asking the US Supreme Court to overturn the Fifth Circuit's ruling, however, the losing side before the three-judge panel had the opportunity to petition the full Fifth Circuit — all of the judges acting collectively, "sitting en banc" — to overturn the panel's decision.  Statistically, the odds of success on a motion for rehearing en banc were slim indeed, but the procedure did give the losing side another "bite at the apple," and their odds of persuading the Supreme Court to even hear their case would be even slimmer.

In one of the most common types of petition for rehearing en banc, the losing side would attack the panel's written decision for failing to address specifically and negate every single argument that the losing side had presented to the three-judge panel.  "We raised thirty-two different points of appeal in our initial brief," these petitions would typically read, "and the panel's written opinion only discusses twenty-seven of those points!"  In the vast majority of cases, however, the unaddressed points — upon closer examination (which was partly my job) — would turn out to have been the weakest arguments anyway.  (Most of the time, in fact, they were arguments that a confident and focused lawyer would have left on his own cutting-room floor to begin with.)  The judges of the Fifth Circuit necessarily operated with a high degree of trust in one another — and their trust included a highly justified working presumption that no serious and substantive argument was likely to have been ignored altogether by all three judges who'd participated in a given panel decision.  Instead, almost all of the cases that were accepted for review by the full Fifth Circuit, sitting en banc, involved serious legal issues that had been squarely and explicitly addressed by the three-judge panel and that, for whatever reason, a majority of the full court believed should be reconsidered.

On Thursday, September 23rd, with an accompanying press release, Judicial Watch filed its appeal from the September 17th decision of the Naval Inspector General, Vice Admiral Ronald A. Route, to dismiss without further investigation Judicial Watch's complaint requesting an investigation into Sen. John Kerry's medals.  It is a competent piece of lawyering, but unfortunately it reads to me all too much like one of the petitions for rehearing en banc that I've described above.  There's a quality of sputtering indignation — "How could Adm. Route have failed to talk about the Combat 'V' on Kerry's Silver Star?!?" and "Where's Adm. Route's citation of regulations to show that Adm. Zumwalt had authority to award one without the Secretary of the Navy's involvement?!?" (my paraphrases, not quotes) — that may indeed have been unavoidable for want of better arguments, but that is still unlikely to be very effective.  There's simply no due process requirement that a decisionmaker address each and every argument made by a litigant/complaintant in the degree of detail that the litigant/complaintant might desire; and the decisionmaker's failure to do so, by itself, is unlikely to impress a reviewing authority who begins with a predisposition to believe that the decisionmaker has given all of those arguments their due consideration.

Judicial Watch was wise to tone down its initial rhetoric — the appeal letter doesn't include the offensive phrase "whitewash," for instance, that Judicial Watch used in their press release immediately after Adm. Route's decision.  And I stress that Adm. Route's decision does not, and ought not, preclude further public argument on these subjects, notwithstanding Adm. Route's refusal to convene a more thorough investigation that would address their merits in a formal proceeding.  But I continue to expect that Secretary of the Navy Gordon R. England is likely to reject Judicial Watch's appeal and affirm Adm. Route's exercise of discretion.