Federal Court Vacancies Are a Crisis. Military Judges Are the Solution.
A modest proposal to solve a growing problem in America’s judicial system.
Every week, the American Bar Association releases the status of judicial vacancies, nominations, and confirmations in the federal judiciary. There are 136 vacant judgeships: 120 at the district courts, 14 at the courts of appeals, and two at the Court of International Trade. Of these 136 vacancies, 64 have been identified as “judicial emergencies” by the Administrative Office of the U.S. Courts, which considers vacancy lengths and court caseloads in the federal courts. (The office also defines “judicial emergency” to include any district court with more than one authorized judgeship and only one active judge.)
While vacancies are unavoidable within the court system, historical data suggest the current shortfall is notably high — and growing. Left unresolved, these vacancies may result in case delays and backlogs in the short term and a loss of public confidence in the judiciary in the long term.
Filling these open seats and restoring the federal judiciary to more comfortable capacity will require a dedicated effort to identify, nominate, and confirm qualified candidates as expeditiously as possible. Fortunately, there is a pool of qualified candidates waiting for serious consideration: retired military judges.
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.
Though judicial experience is not a prerequisite for appointment to the federal bench, the knowledge and skills that military judges would bring to the federal judiciary could have a positive and immediate impact on the courts. As former practicing judges — albeit of the Article I type — retired military judges would be ready to hear and decide cases quickly, with less time needed to prepare for their new roles. Their familiarity with military trial practice and evidentiary rules, including the Military Rules of Evidence (which closely resemble the Federal Rules of Evidence), would enable them to adapt quickly to federal practice. Additionally, they would be well-prepared to tackle the extensive caseloads that federal judges carry. 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. The proven ability of military judges to process actions could have a significant effect on existing case backlogs and judicial emergencies.
Additionally, retired military judges would bring greater diversity of thought, background, and experience to the federal bench. As the courts have recognized, the military represents a specialized community that, while small, has had an outsize influence on our national experience, particularly since 9/11. Having served in the armed forces and, in many instances, having deployed in support of overseas contingency operations, retired military judges would add an uncommon perspective to the bench. Their military experience, as well as their familiarity with specialized areas of legal practice, such as national security law, would help broaden the outlook of the judiciary and contribute valuable diversity to the collective decision-making of the courts. As Lee Epstein, Jack Knight, and Andrew D. Martin have suggested, “better decisions follow from a process by which individuals contribute their individual knowledge to the collective activity.” By allowing individuals to test their ideas, assumptions, and beliefs, as well as those of others, group decision-making can result in “superior knowledge” and “better solutions to collective problems.” They further declare that “our institutions are most effective when participation is most diverse” and including the insights of retired military judges could ultimately help strengthen the judiciary.
Retired military judges might also garner broad, bipartisan support for speedy confirmations. As former military officers, most have likely avoided political conflict and controversy during their careers, potentially smoothing the way to confirmation. Department of Defense policy generally prohibits active-duty members of the armed forces from engaging in partisan political activity and encourages service members not on active duty to “avoid inferences that their political activities imply or appear to imply official sponsorship, approval, or endorsement.” The more serious offense of contempt toward officials — a group that includes the president, members of Congress, state governors, and members of state legislatures — is actually a crime under the Uniform Code of Military Justice that is punishable by court-martial. Accordingly, circumspect military officers are keen to sidestep political controversy to preserve the nonpartisan institutional character of the military. Admittedly, retired officers are not held to the same standard as officers in active status, and many eschew political abstinence upon retirement — some spectacularly so. Nevertheless, retired military judges may have an advantage in the confirmation process.
Lastly, having proved their commitment to service as military officers, retired military judges are likely to make dedicated public servants on the federal bench.The job of a federal judge can be demanding and entail considerable sacrifice. Not only must federal judges manage complex caseloads and resolve contentious legal disputes in a fair and timely manner, but they often do so at great personal and professional cost. For example, federal judges must give up certain freedoms when they join the judiciary, including the ability to participate fully in certain extrajudicial activities, such as civic and charitable organizations, and the ability to engage in political activity.
Federal judges also forgo other rewarding, and frequently lucrative, opportunities when they ascend to the bench. While judicial compensation has increased in recent years, federal judges’ salaries remain much lower than many other legal occupations and, thus, are still a deterrent for many talented and qualified candidates. For example, J. Michael Luttig chose to leave the 4th U.S. Circuit Court of Appeals to pursue a job with Boeing in part because of higher pay. Judicial pay, however, is less likely to discourage retired military judges, who are used to military pay and can supplement their incomes with retirement pay. Ultimately, retired military judges are generally familiar with the constraints of federal judicial service and, if willing to serve, would do so wittingly.
The American Bar Association observes that our nation is “disadvantaged when our federal judiciary does not have sufficient judges to hear cases and resolve disputes in a thorough and timely fashion.” Current vacancies have already begun to strain the federal judiciary and undermine confidence in its effectiveness. Appointing retired military judges to open seats could help resolve these issues and restore much needed capacity to the federal courts. With experience deciding cases, a broad understanding of military and national security issues, and a proven commitment to public service, retired military judges represent a ready source of judicial nominees that should not be overlooked.
The views expressed here are the authors’ personal views and do not necessarily reflect those of the Department of Defense, the U.S. Army, the U.S. Military Academy, or any other department or agency of the U.S. government. The analysis presented here stems from their academic research of publicly available sources, not from protected operational information.