On vacancies and access to justice

On August 3, 2015, the U.S. Court of Appeals issued the following brief notice, available here:

NOTICE - IN RE SEPTEMBER 2015 TERM OF COURT

Article 142 of the Uniform Code of Military Justice, (UCMJ), 10 U.S.C. § 942 (2012), authorizes the appointment of five judges to serve on the Court. One of the positions is vacant. Unless the Court issues a notice that a senior judge or an Article III judge will perform judicial duties, the four judges in active service will perform the functions of the Court. See Articles 142 and 144, UCMJ, 10 U.S.C. §§ 942 and 944, and U.S.C.A.A.F. Rule 6(a).

Seems okay, right? Wrong.

The Court is composed of five judges. The lion's share of its docket is composed of petitions for grant of review filed by persons convicted by court-martial (the remainder are death penalty cases, cases certified by the judge advocates general, original petitions for extraordinary writs, writ-appeal petitions, and government appeals). The catch is that if the court denies a petition for review, the petitioner cannot seek a writ of certiorari from the Supreme, and instead has to try getting a writ of habeas corpus or other relief from a federal court outside the military justice system.

When the court is at full strength, it follows a minority-grant rule: only two votes out of five (40%) are needed to grant review, and the petitioner can hope to interest all five. If one of the five takes an interest, he or she may be able to pick up a second vote, and, voilà, review will be granted (and, with it, potential review by the Supreme Court).

Ah, but what if there are only four judges functioning on petitions for review? That means (1) petitioners still need to get two votes (now 50%), and (2) the total population from which a vote to grant can come is not five, but four, meaning the possibility of interesting a single judge who could in turn pick up a second vote to grant has gone down by 20% (the universe now being four rather than five).

Result: when there is a vacancy on the court, and the court -- as it has just announced -- decides to muddle through until it is back to full strength, the process that produces so few grants per year becomes even more tilted against grants, and even more cases become ineligible for potential review by the Supreme Court.

Back in 2006, when the court was down to three judges, the National Institute of Military Justice urged the court to modify its internal procedures so that only a single vote would be needed to grant review. The court refused to make the change, and offered no explanation. The problem is not one that NIMJ alone identified. As early as 1998, Judge Eugene R. Sullivan observed in United States v. Roseboro, 50 M.J. 207, 208 n.* (C.A.A.F. 1998) (Sullivan, J., dissenting), that "failure to fill out the Court . . . at the petition stage can prejudice the petitioner simply because it makes it that much harder to round up a second vote for a grant." See generally Eugene R. Fidell & Dwight H. Sullivan, Guide to the Rules of Practice and Procedure for the United States Court of Appeals for the Armed Forces § 6.03[1], at 49-50 (LexisNexis 14th ed. 2015).

There is no way of knowing how long the current vacancy (occasioned by the July 31, 2015 expiration of Chief Judge James E. Baker's term) will exist. A nominee has been announced, but it is getting late in President Barack Obama's second term, and given the political climate in the Capital the confirmation window may already be closed for Article III judgeships. That will probably not affect the confirmation process for the CAAF (Article I) vacancy, but even if the hiatus is much shorter than the 25 months that elapsed between the expiration of Chief Judge Andrew S. Effron's term in 2011 and the installation of Judge Kevin A. Ohlson in 2013, it is hard not to conclude that petitioners will be paying some penalty during the gap. Perhaps number-crunching can disprove this (see lies, damned lies, and statistics), but to the Editor's layman's thinking, this is not right in either substance or appearance and the court ought to arrange with one or more of its growing roster of [7] senior judges to pitch in, not only for cases on the minuscule master docket [37 argued cases this Term], but also to help review the far more numerous petitions.