No one outside the military justice community is likely to be aware of the September 20, 2006 decision in United States v. Lane by the US Court of Appeals for the Armed Forces. It would be an uninteresting case, just a druggie being booted out of the military for the crime of cocaine use, but for the unusual Constitutional issue it decided: whether a sitting senator, Lindsey Graham of South Carolina, can serve both as a member of the Senate under Article 1 of the Constitution and as a military judge under Article 2. The Court of Appeals ruled "no", in resounding terms.

The Constitution's Article 1 Section 6 says, in part, that, "No Senator or Representative shall, during the time for which he was elected, be appointed to any civil Office under the authority of the United States...and no Person holding any Office under the United States shall be a member of either House during his Continuance in Office." This is part of the Separation of Powers, known as the "incompatibility clause." The Supreme Court has said that, "The Constitution thereby...prohibits members of Congress from holding other offices through [this] limitation..."

Relying on Supreme Court cases dating back to 1879, the Court reversed and remanded to the lower court, writing that:

In this case, a Member of Congress is serving in a position that requires the exercise of judicial power to affirmatively find beyond a reasonable doubt that an accused committed a criminal offense, that there is no prejudicial error, and that the sentence is lawful and appropriate. A position that requires the exercise of those powers is an office of the United States and cannot be filled by a person who simultaneously serves as a Member of Congress.

This ruling effectively tosses Sen. Graham off the Air Force Court of Military Appeals. Sen. Graham is a member of the Judiciary Committee. One can only wonder what he would say to a judicial nominee who was as apparently ignorant of the Incompatibility Clause as he.

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