The Spring 2009 issue of the Military Law Review is now available here. Military justice wonks will be particularly interested in this article by Major Fansu Ku: From Law Member to Military Judge: The Continuing Evolution of an Independent Trial Judiciary in the Twenty-First Century, 199 Mil. L. Rev. 49 (2009).
Major Ku concludes that legislation providing for a permanent military judiciary is neither necessary nor desirable. She considers and rejects the proposal suggested by Professor Fred Lederer and then-LT Barbara Hundley in An Independent Military Judiciary–A Proposal to Amend the UCMJ, 3 Wm & Mary Bill of Rights J. 629 (1994). MAJ Ku argues that “current personnel practices indicate that military judges are unlikely to be influenced by their interests in future promotions and assignments.” 199 Mil. L. Rev. at 62. To support this conclusion, she observes that “eligibility requirements preclude most Army Judge Advocates from applying for judgeships until late in their careers.” Id. Additionally, “no concrete evidence supports a threat to military judges’ independence, by TJAG or anyone else.” Id. at 63.
She also rejects the notion that military judges should be removed from normal military personnel policies, arguing that “the status of military judges as commissioned officers in the armed forces is vital.” Id. at 65. She makes an interesting argument that if military judges were cloistered away in judicial duties, Weiss might suggest that military judges’ duties are no longer germane to being a military officer, thus possibly requiring a second appointment (which would have to be made by SECDEF or the President) to satisfy the Appointments Clause. Id. at 70 (citing Weiss v. United States, 510 U.S. 163 (1994)).
While rejecting major changes of the sort suggested by Professor Lederer, MAJ Ku points to several lesser changes that might be helpful in promoting the military judiciary’s independence. She writes favorably of the Army’s decision to grant military judges a fixed term of office by regulation. See id. at 71-74; see Army Regulation 27-10, Military Justice, ¶ 8-1.g (2002). This section of the article, however, appears to contain an error. MAJ Ku writes, “None of the other services currently provide for tenure or a fixed term of office for their judiciary.” Id. at 73. But as the Air Force Court has observed, “the Coast Guard provides for 3-year assignments for military judges except when they are reassigned ‘under the normal personnel assignment process based on the needs of the service.’ Commandant Instruction M5810.1D, Military Justice Manual (17 Aug 2000), ¶ 6.E.” United States v. Paulk, 66 M.J. 641, 642 n.2 (A.F. Ct. Crim. App.), petition denied, 67 M.J. 169 (C.A.A.F. 2008).
MAJ Ku also writes favorably about the Army’s recently established judicial apprenticeship program. 199 Mil. L. Rev. at 74-77. She then offers the Navy JAG Corps’ military justice litigation career track as a model to be emulated and discusses the Navy’s judicial screening board and new position of Chief Judge of the Navy. Id. at at 78-83. She then discusses a proposal that the Code Committee is considering to expand military judges’ contempt powers. Id. at 83-85. Finally, she sets out a possible career path for those who want to become Army military judges. Id. at 85-86.