Two Senior Judges Look Back and Look Ahead: An Interview with Senior Judge Robinson O. Everett and Senior Judge Walter T. Cox

• Author: Interviewed By Major Walter M. Hudson
• Pages: 04

42 MILITARY LAW REVIEW [Vol. 165

TWO SENIOR JUDGES LOOK BACK AND LOOK AHEAD: AN INTERVIEW WITH SENIOR JUDGE ROBINSON O. EVERETT AND SENIOR JUDGE WALTER T. COX, III1

INTERVIEWED BY MAJOR WALTER M. HUDSON

1. Introduction

   On 21-22 February 2000, two senior judges on the United States Court of Appeals for the Armed Forces (CAAF), Senior Judge Robinson

   O. Everett and Senior Judge Walter T. Cox, were interviewed at their offices at Duke University Law School, where they teach classes in criminal law and national security law. Over the course of several hours, Senior Judge Everett and Senior Judge Cox offered their opinions on and insights into many aspects of the military justice system, spoke of controversies that arose during their tenures on the court, and gave advice and suggestions for the future.

   Senior Judge Robinson O. Everett was nominated by President Jimmy Carter to serve on the court, and, after being confirmed by the Senate, assumed his duties in 1980 and served as the Chief Judge until 1990. He served an additional two years on the court before retiring from active judge status in 1992. He received his A.B. (magna cum laude) and J.D. (magna cum laude) degrees from Harvard University, and an LL.M. from Duke University. He is also the Founder of the Center on Law, Ethics, and National Security at Duke University School of Law, where he now teaches.

   Senior Judge Walter T. Cox, III was nominated by President Ronald Reagan to serve on the court and, after confirmation by the Senate, began his term in 1984. He became Chief Judge of the CAAF in October 1995 until he retired from full-time judge status in 1999. He received his B.S. degree from Clemson University, and his J.D. degree from the University of South Carolina, where he graduated first in his class. He also served as

   an Army judge advocate and, before service on CAAF, was resident judge for the Tenth Judicial Circuit in South Carolina.

2. Background, Appointment, and Initial Service on the Court

   What in your background do you think helped you best to serve on the U.S. Court of Military Appeals, to be renamed later as the U.S. Court of Appeals for the Armed Forces?

   Judge Everett: I would assume my background as an Air Force judge advocate. I had twenty-eight years in the Air Force Reserve, most of it as a judge advocate. Not a great part of it on active duty; the active duty was primarily during the Korean War, but subsequently I was in the Active Reserves with a mobilization assignment in Headquarters, U.S. Air Force. That, undoubtedly, helped a great deal. I had also been teaching in the field of military law. I conducted seminars beginning back in 1957 when I did one over at the University of North Carolina School of Law. Perhaps also having served as a commissioner for two years on the staff of the court from 1953 to 1955 helped a great deal; it gave me an inside perspective on the court. So, all of those things combined. I had been the Chair of the Standing Committee on Armed Forces Law-I think it had a slightly different title then-for a couple of years in the late 1970s. I had interacted with the armed services at a relatively high level as far as military justice was concerned-I think that all of that played a part.

   Judge Cox: Well, I guess the obvious answer would be that I had a long tradition with The Judge Advocate General's Corps of the Army, having been in the first class, I believe, to be selected to go to law school on the excess leave program in 1964. I was fortunate to be a Distinguished Military Graduate of the ROTC program at Clemson, which in those days made you eligible for a Regular Army commission, and I took a regular commission originally in the infantry. Then I got branch-transferred to the Chemical Corps for some reason while detailed to The Judge Advocate General's (JAG) Corps on excess leave. From the time I graduated from college until almost nine years later, I was affiliated with the JAG Corps, which certainly gave me an appreciation and understanding of the structure of the military and the structure of the military justice system. I was also there for the transition with the Military Justice Act of 1968.2

   I think, as far as background to understand the workings of the court, my experience as a JAG definitely would be the main thing. In fact, I

   doubt if I would have ever heard of the court had it not been for that experience.

   Could you please explain how you were nominated and appointed to serve on the court?

   Judge Cox: It's a wonderful story, how I got selected. I was in a very exciting race in the state legislature for the Supreme Court of South Carolina in the fall of 1983 and the spring of 1984, and I happened to be sitting in the office of Judge Billy Wilkins, who was the first Reagan judicial appointee to the District Court bench. He was also a JAG reservist or National Guardsman. He got a call from Senator Thurmond's home secretary, a gentleman named Warren Abernathy, and the conversation was about the Court of Military Appeals. At the time there was a South Carolinian whom Senator Thurmond was urging the President to appoint to the court. And the gentleman decided not to stand for the appointment, and that was what the conversation was about, and Judge Wilkins turned to me and said, "Hey, Walter, do you want to be on the Court of Military Appeals?", and I laughed, and I said, "Yeah, that would be great."

   A couple of days later, I got a telephone call from Senator Thurmond-whom I had known all of my professional life anyway-and he said, "Walter," he said, "I didn't know you were interested in the Court of Military Appeals." He said, "I had already promised that I'd support this other fellow," and he said, "but he's dropped out, and it looks like Senator Tower from Texas, who's Chairman of the Armed Services Committee, has a candidate, and so we're probably not going to be a player in this appointment." I said, "Well, Senator, I'm in the race for the Supreme Court of South Carolina. Thank you very much," and then I got a call a couple of days later from his chief of staff or administrative assistant, Mr. Dennis Shedd, who is now a federal judge in South Carolina. And he said, "Senator Thurmond wonders if he could just submit your name to the President to see what'll happen." He said, "It looks like it wouldn't be any chance you'd be appointed, so how about just sending us a résumé and let him put it in," and I said, "Sure."

   I sat down and jotted out a résumé, didn't go to any experts for résumé advice or anything; I just sent one in. About a month or so later, I got another call saying Senator Thurmond would like for me to come to Washington. He had set up appointments with Secretary of Defense Caspar Weinberger and with the Chief of Presidential Personnel, Mr. John Herrington. I interviewed with them and interviewed with some political appointee-type people and when the appointment was over with at the White House, the Chief of Presidential Personnel said, "Well, Walter, you look like the kind of fellow the Reagan administration would like to have serve, but we've already promised this judgeship to somebody else." I told him, I said, "You don't owe me any apology about it." I said, "I'm in an interesting race for the Supreme Court of South Carolina, and Senator Thurmond drafted me; I didn't volunteer for this position."

   Later, I had my first personal conversation with the President, in the late spring of 1984, and I'll never forget it. I was holding court in Columbia, South Carolina, and my secretary came in and said, "The President of the United States wants to speak to you." And I said, "Well, put him on." It wasn't quite like that, but President Reagan came on the phone, and I remember the conversation very vividly. He said, "Judge Cox," he said, "I've got a piece of paper on my desk. If I sign it, it will appoint you to the Court of Military Appeals as a judge of that Court. Would you honor the people of this country by accepting that nomination?" I said, "By all means, Mr. President," and I couldn't think of anything else to say, and he said, "Your record is very nice and very impressive, and we're delighted to have you as a member of our administration." And that's how the appointment took place.

   After that, though, I was on a list of persons that he had appointed, and regularly, maybe once a month, once every two months, we would be invited to the White House for coffee. The President would come in and explain some policy decisions he was about to announce and ask everyone to support him and things like that. He was quite a gregarious and outgoing President. He got involved with his appointees. I had the chance to meet him on several occasions, but I hadn't had a conversation with him personally prior to the appointment.

   I was interviewed by Secretary Weinberger. I was also interviewed by Mr. Herrington, the Chief of Presidential Personnel, who was very knowledgeable about military justice, and he interviewed me for over an hour. He asked a lot of penetrating questions about the role of commanders. With his Navy background, he was particularly interested in the role

   of a commander of a vessel. Since I had no Navy experience, I just answered with what I thought was the right answer, and I guess it was.

   But there was no particular litmus test. None of the political types of questions was ever asked. And of course there was extensive screening by the Federal Bureau of Investigations and the Armed Services Committee.

   I learned later that my competition for the job was Judge Frank Nebeker, who's now the Chief Judge of the Court of Appeals for Veterans Affairs, and Judge Eugene Sullivan, who at the time was General Counsel for the Department of the Air Force.3 I think I probably was the dark-horse candidate. I don't know that for a fact. Judge Cook4 got quite frustrated with the length of the nomination and appointment process. He stayed on as a senior judge for at least a period of time after...