Hypothetically, it would be a major issue if a nominee were still in the military or if they had just left active duty, just as it would be a major issue if a nominee had never been in the military at all. Would either situation be an automatic disqualification? I doubt it — it would weigh heavily, but final judgment would depend on the nominee’s other accomplishments and demerits. In comparison, the difference between the statute’s iterations of ten and seven years is marginal — one could see it easily outweighed by other relevant attributes.
Nearly six years elapsed between Marshall’s resignation as Army chief of staff and his appointment as defense secretary in 1951 — a tumultuous time from the end of World War II, in which Marshall played a pivotal role; to Marshall’s equally essential post-war role and tenure as secretary of state; to the outbreak of war in Korea, for which the new, insufficiently prepared Defense Department needed a firm hand. Mattis was retired from active duty for a bit under four years, returning as the military grappled with the challenges he knew intimately — maintaining counterterrorism vigilance while coping with China, Russia, and Iran.
For Austin, it would be five years’ separation — a bit more than Mattis and a little less than Marshall. In Austin’s case, as in his predecessors’, the Senate is fully capable of evaluating whether, in light of our historical circumstances as well Austin’s particular background and skill set, his length of separation is a problem. Waiving the statute would not prevent any senator from voting against his nomination out of concern that his active military career is too recent. But he deserves an up-or-down vote based on the fullness of his qualifications and his fitness, vel non, for leadership in our current threat environment.