One of the big topics generated by Donald Trump’s transition is that retired USMC General James Mattis will be nominated to be Secretary of Defense. I’m of two minds on this. Fist, Mattis is a devoted and uncorruptible Marine who has given his whole life to the service of his nation… given it to the extent that he never bother to marry. I have no doubt that he is superbly equipped to turn around a Defense Department that has been so infested with rot and corruption under Obama that the ability of any of the armed forces to carry out their mission is an open question. In fact, I have nothing but the highest regard for Mattis as a fighting man and as a man, and God knows, men are a rare commodity these days. In fact, I even agree with this viewpoint because I think Michael Flynn is a horrible choice to be National Security Adviser:

Mattis will keep Flynn in check without breaking a sweat & word of massive staff reductions to NSC is encouraging.https://t.co/DtJZiYdsFC — John Schindler (@20committee) December 2, 2016

On the other hand, Mattis’ nomination runs against the entire tradition of this nation and throwing those traditions aside for no greater reason than to make a statement (for the record, I’m still certain whether this is real or it’s just another attention getting scheme by Trump and his people) is not something to be cheered. (Former RedStater Dan McLaughlin who has moved uptown to National Review takes a different view.)

Title 10, US Code, gives us the requirement for Secretary of Defense

a) There is a Secretary of Defense, who is the head of the Department of Defense, appointed from civilian life by the President, by and with the advice and consent of the Senate. A person may not be appointed as Secretary of Defense within seven years after relief from active duty as a commissioned officer of a regular component of an armed force.

This requirement has been in existence ever since the establishment of the modern Defense Department in 1949. (Yes, I know about the 1947 Act that created a National Military Establishment. And no, the Secretary of Defense did not used to be called the Secretary of War. The Secretary of War is the modern Secretary of the Army.) Here it is important to note that of all the Cabinet and sub-cabinet posts only four have this prohbition: the Secretary of Defense, Army, Navy, and Air Force. And it is equally important to note that the prohibition does not apply to enlisted men, to warrant officers, or to commissioned officers in the Reserve Component or National Guard. It applies solely to officers in the Regular component of their service. In fact, there is not prohibition on a serving officer being appointed as Secretary of State or any other cabinet post. Active duty officers have headed the CIA and NSA. The military departments are unique.

When Harry Truman wanted to appoint General George C. Marshall to be Secretary of Defense in 1950, Congress reluctantly agreed and passed a law allowing this action. What is of note is that the legislation says “the authority granted by this Act is not to be construed as approval by the Congress of continuing appointments of military men in the office of Secretary of Defense in the future.”

Marshall was approved because he was George C. Marshall. Because he had steered the United States through World War II, because he’d conceived of the Marshall Plan while Secretary of State, because he was a well known entity to Congress and he was universally respected. James Mattis, with all due respect, is no George C. Marshall. And 2016 is not 1950.

Yes, yes, foolish consistency is the hobgoblin of small minds and mine is as small as any but as conservatives we are supposed to adhere to certain principles. Here I’ll refer to Russell Kirk:

Conservatives are champions of custom, convention, and continuity because they prefer the devil they know to the devil they don’t know. Order and justice and freedom, they believe, are the artificial products of a long social experience, the result of centuries of trial and reflection and sacrifice. Thus the body social is a kind of spiritual corporation, comparable to the church; it may even be called a community of souls. Human society is no machine, to be treated mechanically. The continuity, the life-blood, of a society must not be interrupted. Burke’s reminder of the necessity for prudent change is in the mind of the conservative. But necessary change, conservatives argue, ought to be gradual and discriminatory, never unfixing old interests at once.

…

Conservatives argue that we are unlikely, we moderns, to make any brave new discoveries in morals or politics or taste. It is perilous to weigh every passing issue on the basis of private judgment and private rationality. The individual is foolish, but the species is wise, Burke declared. In politics we do well to abide by precedent and precept and even prejudice, for the great mysterious incorporation of the human race has acquired a prescriptive wisdom far greater than any man’s petty private rationality.

…

Any public measure ought to be judged by its probable long-run consequences, not merely by temporary advantage or popularity. Liberals and radicals, the conservative says, are imprudent: for they dash at their objectives without giving much heed to the risk of new abuses worse than the evils they hope to sweep away. As John Randolph of Roanoke put it, Providence moves slowly, but the devil always hurries. Human society being complex, remedies cannot be simple if they are to be efficacious. The conservative declares that he acts only after sufficient reflection, having weighed the consequences. Sudden and slashing reforms are as perilous as sudden and slashing surgery.

I say this because appointing Mattis as Secretary is really a unique event in our history and we should not do something far outside the mainstream of governing the nation for casual and transitory reasons. That’s what the other guys do.

When you review the list of Secretaries of the Army since the beginning of the republic you find only three men, other than Marshall have served as Secretary of military department under conditions that would violate Title 10.

Henry Knox, the first Secretary of War, was appointed in 1785. He was a regular officer in the Continental Army, chief of artillery for George Washington, which may or may not be the same thing as the Army of the United States as he served under the Articles of Confederation.

Retired General John Schofield was Secretary of War from June 1868 until March 1869 on an interim basis until Edwin Stanton’s replacement could be found.

Edwin Denby served as Secretary of the Navy from March 1921 to March 1924. He was a USMC major when he resigned his commission in 1919. Denby was a unique situation as he’d been a member of Congress before World War I and had enlisted in the Marines when war was declared and rose from private to major in two years.

Lots of other people have served as Secretary of War and Navy who have had military experience. Some even had it with the seven year window (like Jefferson Davis) but in 100% of those cases the man in question did not serve in the Regular Army or Navy of the United States. Davis, for instance, was a colonel of volunteers. Likewise John Rawlins and William Belknap. They would be fully eligible under today’s law.

The bigger lesson, of course, is that there was no legal requirement that there be a time elapsed between retirement or resignation and serving as secretary of defense or a military department and yet after the War of 1812, after the Mexican War, after the Civil War, and after World War I there was no move to nominate a recently separated officer into those positions. Before we take the step of casting aside tradition we need to have a compelling case that explains why there is no one left in the nation other that Mattis who can do this job. For all of his merits, I don’t think that case can be reasonably made.

Having said that, I do think that Mattis, if he is indeed the nominee, will get both the amended law he needs and he will get the votes to be confirmed. And he should. Some Democrats like New York’s Kirsten Gillibrand have said they will oppose amending Title 10 to allow Mattis to serve

Sen. Kirsten Gillibrand out w/ statement saying she will oppose the waiver to allow General Mattis to serve as SecDef: pic.twitter.com/VIxqm8PxbY — Kyle Griffin (@kylegriffin1) December 2, 2016

This is significant… perhaps. Because where the Democrats got rid of the filibuster for nominations, they could filibuster the change to the law. Of course, that would be a ballsy act. Filibustering a highly decorated Marine with an impeccable reputation for integrity and who is idolized by his troops would really be a great selling point to the electorate… especially when you’re looking at a 2018 calendar that could give McConnell a filibuster-proof majority in the Senate.

But just because you an do something is no reason you should. And a waiver for Mattis means the next waiver and the next and the next are easier until we see that the Secretary of Defense is always filled by a retired flag officer. And that would not be a good thing for the nation.