Friday, July 30, 2021

Another interregnum

Tomorrow marks the end of Chief Judge Scott W. Stucky's term on the U.S. Court of Appeals for the Armed Forces. As with any multi-member appellate court, any time a judge leaves and a new one arrives, a new "court" arises. It will be interesting to see what changes occur in procedure, substance, and tone when the Administration settles on a replacement.

One recurring issue has to do with the Court's practice with respect to petitions for grant of review when there is a vacancy on the bench. Plainly, the more judges, the easier it is to find two votes for a grant. When the bench is complete, it takes 40% of the complement; when the court is bobtailed, it takes 50%. A vacancy therefore works asymmetrically to the detriment of the accused, since the government is typically better positioned to persuade the Judge Advocate General to certify a case for review. Additionally, a fifth set of eyes reviewing a supplement may identify some issue or aspect of a case the others miss; and that judge--who will most likely be one of the Court's about-to-be 8 senior judges--may be able to persuade someone else to join in voting to grant. Where is the harm in doing this?

In the past, the Court has dismissed suggestions that it add a senior judge or find an Article III judge to fill out the bench for acting on petitions, as it does for granted cases. See generally Eugene R. Fidell, Brenner M. Fissell & Dwight H. Sullivan, Guide to the Rules of Practice and Procedure for the U.S. Court of Appeals for the Armed Forces § 6.03[1], at 62-63 (Matthew Bender & Co. 20th ed. 2021); see also id. § 6.03[8], at 72-73. Perhaps the four remaining judges, one of whom of course has never had to face this issue, may reach a different conclusion. They should. At the very least, the Court should defer action on any petition when so requested by a petitioner during the current hiatus.

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