President Trump entered office in January of this year with 103 federal judicial vacancies to fill. As of the writing of this article, there are now 143 vacancies, with 48 nominees pending before the Senate. An article published a couple of days ago in Foreign Policy by two faculty members of the United States Military Academy, Lieutenant Colonel Shane Reeves, and Major Ronald Alcala, offers “a modest proposal” to attack the backlog: appoint retired military judges to the federal bench.

The article notes that, among federal adjudicators, military judges are “frequently overlooked and underappreciated,” but have “extensive experience adjudicating cases, particularly in the field of criminal law.” Specifically, last year United States Army trial judges tried an average of 18.5 trials, which compares favorably to the 17 trials a year handled by federal district court judges. The piece also notes that “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.”

Further, Reeves and Alcala assert that retired military judges would offer the federal judiciary valuable diversity:

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.

They also contend that recently retired military judges “might also garner broad, bipartisan support for speedy confirmations” on account of the fact that they likely have spent their careers avoiding political conflict and controversy. A caveat is conceded, though, in that “many” retired officers “eschew political abstinence upon retirement – some spectacularly so.”

The article’s final pitch for appointing retired military judges to the federal judiciary is financial: Many talented prospects for the federal bench in the past have declined or cast off the opportunity and taken jobs elsewhere, where the offered remuneration was greater. The piece specifically mentions J. Michael Luttig, http://www.boeing.com/company/bios/j-michael-luttig.page, who was formerly a judge on the Fourth Circuit Court of Appeals but surrendered his lifetime appointment and left a distinguished career in public service to take a position at Boeing. In contrast, Reeves and Alcala posit that retired military judges would be less likely to find the grass (or the money) to be greener elsewhere given “their proven commitment to public service” and the fact that their income would be supplemented by military retired pay.

7 Responses to “Scholarship Saturday: A solution for a hundred federal bench vacancies”

  1. Less Concerned says:

    Especially with retired Army MJs I would expect to see consistent downward departures in just about every federal sentence given their reluctance to actually punish people.  They would also have to get over their persistent paternalism throughout trial work as well. 

  2. stewie says:

    I mean a few might serve, but most are what in their 60s, they have probably O5/O6 retired pay plus probably another job, often a 9-5 job where they don’t work too too hard and get another retirement.
     
    I’m just thinking a lot of them are not going to be rushing to do that job, but it is certainly worth the looksee.

  3. Stephen Wilson says:

    Please note that probably 3/4 of Federal District Court cases are civil rather than criminal and the caseload is HUGE. Statistics can be seen at:
     
    http://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0930.2017.pdf

  4. Less Concerned says:

    Please note that probably 3/4 of Federal District Court cases are civil rather than criminal and the caseload is HUGE. Statistics can be seen at:

    Plenty of federal judges with either no civil or no criminal experience when appointed. 

  5. Philip D. Cave says:

    And just look at the qualifications of some recent federal judicial nominations.
     
    How about making MJ’s magistrate judges and promoting the magistrate judges?

  6. Tom Booker says:

    The corner is called “scholarship Saturday,” but unfortunately the cited article is kind of short on scholarship.  It’s also curious that it was run in Foreign Policy; perhaps the Army Lawyer was too full to pick it up.
     
    I’m not sure there’s any such animal as a “retired military judge.”  A military judge is designated as such while so serving.  I served 3 trial bench tours and 1 appellate bench tour, but my retired title is “CDR, JAGC, USN (Ret.).”  Certainly the skills that I developed while on the bench were useful in my current job (U.S. Administrative Law Judge, also an “Article II” judgeship — I say “Article II” because, unlike Bankruptcy, Tax Court, CAAF, and U.S. Magistrate Judges, to name but a few, I am not appointed to a “fixed term of office”), but so were other areas that I dealt in — as I was fond of telling the junior counsel in front of me in courts-martial, and as I tell our Attorney Advisors here, somebody paid for them to attend all 3 years of law school.  My claims experience and my investigative experience come in handy in my current job, and while I don’t have a whole lot of operational law issues crop up these days, still the experience from those billets (where I spent a plurality of my time) is all part of the package.
     
    The authors ignore the stark political reality of the federal bench:  you have to know somebody, to have a patron.  Most military officers don’t rub enough elbows with the political forces because of the nature of our duties and because of the statutory and regulatory prohibitions.  Still more of us serve because it is important to a free society, not because it will get us something else after we take off the uniform.
     
    Enough of the soapbox.  One fun fact that the authors might have omitted (if they had known of it):  Judge Ryan clerked for Judge Luttig when she graduated from law school.  Another fun fact is that there is at least one US District Judge who is a retiree from active duty, Judge Alley of Oklahoma (a former BG in the Army’s JAG Corps).  I don’t know that there are any others, although of course Judges Wynn and Diaz on the Fourth Circuit were, respectively, Navy and Marine Corps Reserve judge advocates.
     
    Respectfully, LTB

  7. Alfonso Decimo says:

    Tom – Yeah. It was more like a letter to the editor. I agree with your inference that Judge Wynn (for instance) doesn’t count as an example b/c the article is clearly about active duty judges, rather than reservists. – ADES