Perfect storm on E Street

Sunday marked one year since Chief (now Senior) Judge Scott W. Stucky's term on the U.S. Court of Appeals for the Armed Forces expired. The seat he held remains unfilled, although the nomination of Col. (ret) M. Tia Johnson was reported out favorably by the Senate Armed Services Committee months ago. The court has continued to hear cases with a full bench by drawing on its roster of eight senior judges (Senior Judges Andrew S. Effron, Susan H. Crawford, Charles E. "Chip" Erdmann, Margaret A. Ryan, Scott W. Stucky, and Walter T. Cox III have all pitched in).

But all is not well. On the contrary, the circumstances present an institutional perfect storm, with three unacceptable conditions conspiring to impede the fair administration of justice.

First, it is hard-wired into the UCMJ and title 28, U.S. Code, that the Supreme Court can only entertain a petition for certiorari from a case decided by CAAF on petition for review if CAAF has granted discretionary review. This means that the lion's share of the cases that come before CAAF are never eligible for direct review by the Supreme Court. That's on Congress. While many petitions to CAAF are submitted each year without errors assigned by either appellate defense counsel or noted by the accused, scores of others do assign issues. Those cases, unconstitutionally, never qualify for Supreme Court review, unlike every other federal and state criminal appeal, including military commission cases. As of the first anniversary of the Stucky vacancy, CAAF has denied review in a whopping 263 petition cases.

Second, CAAF has made it harder to get a grant of review by refusing to call upon senior judges to fill out the bench for consideration of petitions for review. This means that instead of requiring a 40% vote (2 out of 5) to secure review (and access to the Supreme Court), a 50% vote (2 out of 4) is required. This is on CAAF. CAAF could reduce this unfairness by granting all petitions that assign errors and acting summarily on those that do not warrant plenary briefing and oral argument; by holding all petitions until the Stucky vacancy is filled (or doing so if requested); or by calling on senior judges to vote on petitions for grant of review. Failing to do any of these is on CAAF.

Third, the Senate has failed to act in a timely fashion on Col. Johnson's Jan. 7, 2022 nomination. The nomination has been on the Senate Executive Calendar since Apr. 5, 2022. This delay is the result of an asinine hold placed on certain DoD nominations by fleet-footed Sen. Josh Hawley (R-MO) because he wants to have a public hearing into the chaotic U.S. withdrawal from the Kabul airport a year ago. [Objection! Irrelevant.] He insists that the Secretaries of Defense and State and the National Security Advisor all resign as the price of lifting his hold. That is chiefly on him but also on the Senate, the rules and customs of which tolerate this kind of misguided tactic. The result is the longest hiatus on the military's high court in decades.

Apart from the unfairness to the nominee, the combined effect of these three factors is to shortchange scores of GIs. Every member of the armed forces who has an articulable legal claim in connection with a court-martial has a right to the same access to the Supreme Court as everyone else. GIs haven't gotten a fair shake since 1951, when the UCMJ went into effect without provision for Supreme Court review; they haven't gotten it since the Supreme Court got the power to review a limited category of military cases through the Military Justice Act of 1983; and they certainly haven't gotten it since Aug. 1, 2021.