The Next Judge: US Court of Appeals for the Armed Forces’ Looming Vacancy

In 2011, I wrote an essay for the Journal of National Security Law and Policy titled, “The Next Judge.” Here’s the introduction:

The filling of a judicial vacancy provides a unique opportunity to examine not only the appointment or election process, but also the court itself and its work. For obvious reasons, this has been recognized in connection with the Supreme Court of the United States, where vacancies are often the subject of much conjecture but, because of life tenure, remain essentially unpredictable. On a less lofty plane, the opportunity to take stock also occurs in other courts, and the timing, at least, is less a matter of speculation in non-Article III courts, where judges serve for fixed terms.

A case in point is the expiration of Chief Judge Andrew S. Effron’s term on the United States Court of Appeals for the Armed Forces (referred to here as the Court of Appeals) on September 30, 2011. It is appropriate to consider the process for filling his seat; the standards that, based on the law and past experience, must, could, or should not be taken into account in choosing a successor; and the possible impact on the court and its jurisprudence.

While national security law covers a broad swath, military justice is a key component, since good order and discipline are integral to a credible military capacity, and notwithstanding the remarkable trend towards the use of high technology in national defense, uniformed personnel – human beings – and their conduct (both actual and desired) remain the heart of the matter. Hence, the filling of Chief Judge Effron’s seat is properly viewed as affecting national security. [Footnote omitted.]

Well, here we are, 10 years and five vacancies later. On July 31, 2021, the seat currently filled by Chief Judge Scott W. Stucky will become vacant. To its credit, the Department of Defense is actively soliciting suggestions for possible nominees. With any luck, this time around there will no hiatus of the kind that has almost invariably followed vacancies on the court. (Judges Robert E. Wiss and James E. Baker are the only members of the court to have been appointed the day after their predecessors’ terms expired in 1992 and 2000, respectively. See the “prior judges” table on the court’s website.)

Having closely followed the court for a while, I offer a few personal observations from the safety of the glass-enclosed newsroom high above Global Military Justice Reform Plaza.

First, an update to The Next Judge: it is no longer the case that there is a political balance test for appointment to the court. That provision was indefensible, and Congress wisely repealed it in section 541(c) of the National Defense Authorization Act for Fiscal Year 2017. Whether the Biden administration will insist on Democratic Party affiliation as a rock-bottom, no-kidding qualification remains to be seen, but at least nothing in the U.S. Code will force its hand.

Second, 10 years ago I raised the question whether the Effron vacancy should even have been filled. I wrote:

The Court of Appeals has been deciding fewer than one case per judge per month on full opinion for the last several years, although admittedly it also must sift through many petitions for grant of review. Whether or not the court should (as I believe) be granting far more petitions for review, this is clearly not a heavy load. Moreover, trial caseloads in the armed forces have declined markedly, meaning the Court of Appeals is unlikely to experience a surge of cases in the foreseeable future. Is a five-judge court needed, or could any slack be taken up by exercising the power to designate a senior judge (that is, a judge whose statutory term has expired) or, failing that, an Article III judge to sit? The latter, at least, may be “robbing Peter to pay Paul,” although there do seem to be excess judicial resources on the United States Court of Appeals for the District of Columbia Circuit, at least. There has not been any sentiment in Congress to abolish the seat held by Chief Judge Effron, but in an era of increasing austerity, with many new faces in the House of Representatives, the court’s low numbers could raise the question of shrinking if not abolishing the court or making other dramatic changes in the appellate structure of the military justice system. [Footnotes omitted.]

Given the further, dramatic fall-off in cases, the argument for transfer of the court’s jurisdiction to the (underworked) District of Columbia Circuit is stronger than it was in 2011. The Court of Appeals for the Armed Forces decided 46 cases on full opinion in the September 2010 Term; for the October 2019 Term the number had fallen significantly to a mere 25. Moreover, the overwhelming majority of those cases concerned sex or child pornography offenses, categories of crime for which any claim that a specialized court is needed is weak at best. Only one of the 25 cases involved offenses of a classic military character. Between the same two Terms, the number of petitions for grant of review plummeted from 720 to 368. Nonetheless, there is no known current congressional support for abolishing the court or permitting its judgeships to remain vacant as part of a program of attrition.

Third, the current composition of the court includes five men, only one of whom is a person of color. Especially because the next vacancy will not arise, barring the unforeseen, until Judge Kevin A. Ohlson’s term expires on July 31, 2028, filling the impending Stucky vacancy with a man would mean the court would consist of five men for another seven years (eight if you include the year since Judge Margaret A. Ryan’s term expired on July 31, 2020). I claim no particular insight into the dynamics of the Biden administration, but it does seem highly unlikely that an administration that includes the country’s first woman Vice-President and that has nominated women for nearly half (48%) of the cabinet-level positions would permit the court to remain all-male for well into the next administration. This is all the clearer given the current salience of gender issues both in the armed forces and in American society generally.

How important is military justice experience in terms of doing the job? Not very. Certainly a person who had recent experience in the field would be able to boast that she or he could “hit the ground running,” but any such practical advantage would be modest and, in my opinion, short-lived. Able briefing and oral argument can and should inform the bench, even if all five members were utterly lacking in prior knowledge about the Uniform Code of Military Justice.

Should a military retiree be appointed? I would say “it all depends,” but there is also a downside. The court is supposed to provide civilian appellate review. That is a reason there is a statutory cooling-off period for retired regulars. Experience teaches that talented lawyers with little or no military justice experience can perform perfectly competently on the court.

What makes for a good judge? Sheer smarts? Academic qualifications? Temperament? Empathy? Ability to get along with others? Writing skills? Personally, my hope is that the Department of Defense, the White House, and those on Capitol Hill who have roles to play in the process will take their time and cast their net broadly. People who are interested in serving on the U.S. Court of Appeals for the Armed Forces should thoughtfully consider their qualifications and credentials, consult with others, and if they are willing to run the risk of being disappointed, allow their names to be put forward.

  

About the Author(s)

Eugene R. Fidell

Eugene R. Fidell (@globalmjreform) is Senior Research Scholar at Yale Law School, Adjunct Professor at NYU Law School, and of counsel at the Washington firm Feldesman Tucker Leifer Fidell LLP. He is the author of Military Justice: A Very Short Introduction (Oxford 2016), co-author of Military Justice: Cases and Materials (Carolina Academic Press 3d ed. 2020), and edits the Global Military Justice Reform blog.