New visitors to Global Military Justice Reform may be scratching their heads about the series of 4-judge-bench posts. Here's the background, in case you missed it before.
Since August 1, 2021, one of the five seats on the U.S. Court of Appeals for the Armed Forces has been vacant due to the expiration of the term of office of Chief (now Senior) Judge Scott W. Stucky.
One of the court's key functions is to rule on petitions for grant of review. This is a very important function because unless the court grants a petition, the petitioner cannot even ask for review by the Supreme Court of the United States (a right granted to all other state and federal court litigants). The defects in this arrangement are explored in detail in this article from the Yale Law Journal Forum from a year ago.
By custom, two votes are required to grant review by the Court of Appeals. When there are five judges, that means that the agreement of 40% of the judges is required for a grant of review. When there is a vacancy, two votes are still required, but the 40% requirement has jumped by one-quarter to 50%. In other words, it is harder to get a grant of review.
A fifth set of eyes and ears reviewing a petition may identify some issue or aspect of the case that the other four may have missed.
The court could cure this problem simply by asking one of its eight senior judges to function on petitions, just as senior judges have been filling out the bench on granted cases. Or it could ask that some Article III judge be assigned to sit by designation for this purpose. Or it could hold any petition for which there are not currently two votes to grant until the current vacancy has been filled--or any petition that the petitioner asks be held pending filling of the fifth seat. It has done none of these things. Or, it could simply grant every petition and summarily affirm where no purpose is served by plenary briefing and argument. (It could also do this even when there is no vacancy.)
A nomination for the current vacancy is pending in the Senate.
Bottom line: the purpose of this series of posts is not to be a common scold, but to call attention to an extremely unfair and unnecessary practice. The Court of Appeals should change its process for handling petitions during a hiatus or when there is a recusal. And the Executive Branch and Senate ought to take more aggressive steps to head off lengthy vacancies. This should be possible since CAAF judges have fixed terms of office and expiration dates are known years in advance.