Friday, December 22, 2017

A modest proposal for solving the judicial vacancies problem

Lt. Col. Shane R. Reeves and Maj. Ronald Alcala, who teach at West Point, contend in this Foreign Policy blog post that the current spate of vacancies on the federal bench can be solved by resorting to retired military judges. Excerpt:
Frequently overlooked and underappreciated, these practitioners represent a largely untapped resource. Considering them for positions on the federal bench would be prudent for several reasons. First, most retired military judges already have extensive experience adjudicating cases, particularly in the field of criminal law. Second, as retired members of the armed forces, these judges would bring a diversity of thought and experience to the bench. Third, having completed careers in an institution protective of its apolitical character, retired military judges might more easily gain bipartisan support for confirmation. Additionally, due to the existing military retirement rules, many of these officers will leave the service at a relatively young age and seek continued employment. Accordingly, because of their prior military experience and further career aspirations, some of these officers likely would not shy away from the demands of the federal bench.
The authors argue, for example:
In fiscal year 2016, for example, the Army Trial Judiciary consisted of 23 active Army military trial judges and 21 Army Reserve military trial judges. These judges presided over a total of 815 courts-martial, for an average of 18.5 trials per judge. By comparison, federal district court judges completed an average of 17 trials per judgeship during the same period.
Is this comparing apples and oranges? The figure for courts-martial per judge seems to encompass all cases (many of which involve guilty pleas), while that for civilian federal criminal cases ("trials") seems to include only those that are contested.

How valid are the authors' other arguments?

  • Retired military judges would of course be able to make an easy transition to the Federal Rules of Evidence environment, but depending on their nonjudicial duty assignments, their military experience is unlikely to have included the broad range of areas of civil litigation (federal question and diversity cases) that are the bread and butter of the district courts. Courts-martial of course do not try civil actions of any kind, and although statutes other than the Uniform Code of Military Justice can and do come into play, that single law dominates military trial practice. 
  • Retired military judges represent the inevitable range of personality types, but they all will have had a 20-30-year career within a single institutional framework with a strong communal ethos.
  • As far as diversity of political perspectives is concerned, it is commonly understood that the officer corps in general leans heavily to the GOP. (If memory serves, the ratio is ~9:1.)

Finally, the politics of judicial appointment need to be taken into account. While there certainly have been nominations to the federal bench that rested heavily on merit, political considerations typically play a/the key role in White House and individual Senators' decision making. The notion that turning to military retirees as a way to disarm the current politically weaponized judicial selection and confirmation process seems unrealistic.

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