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.