The importance of building fires: lessons learned as a judge on the United States Court of Appeals for the Armed Forces.

• Author: Baker, James E.

1. INTRODUCTION: JUDICIAL HUMILITY AND A TWO-PART RETROSPECTIVE

   Humility is an important judicial trait. Someone who already knows all the answers, or thinks he does, is not going to explore the law and listen at oral argument in the same manner as someone who is open to argument. Indeed, the ability to genuinely and openly hear both sides of a case is a form of humility--one that is perhaps most valuable to a judge.

   Judges should also be humble because it is remarkable how many different ways one can perform the functions of a judge, even when there are only a handful of tasks that judges perform. Appellate judges read, write, ask questions, and argue. Trial judges add to this list the skills of courtroom and docket management. There are some wrong answers, but no right or absolute answers about how to perform these duties. As I like to say, on a court of five judges, there are five different answers to every question. This too, is a source of humility.

   In this light, I am wary of offering advice to judges and lawyers, although this is what I have been asked to do by providing a retrospective on my fifteen years on the United States Court of Appeals for the Armed Forces, including the last four as Chief Judge. I have chosen to do so in two sections. Section I is academic in tone and describes the role, purpose, and composition of the USCAAF, the Article I federal court that hears appeals arising under the Uniform Code of Military Justice. It starts with a brief primer on the military justice system and ends by addressing three questions that may be of particular interest to a wider audience, as they reflect the three subject areas about which I get asked the most questions when visiting law schools:

   * How is this Article I court of appeals different from Article III courts of appeals?

   * Why do sexual assault and child pornography figure so prominently in the military justice docket?

   * No matter what sort of case is being heard, does oral argument matter in this court, and if so, what are the hallmarks of an effective oral argument?

   Section II takes a more personal tone, presenting four observations about judicial practice derived from a few of the "lessons" that I hope I learned along the way. My overt agenda is to inform; my hidden agenda is to encourage the next generation of judges to enjoy and appreciate the role as much as I have. Here are the main points:

   * It takes time--years--to become a judge.

   * Although there are no agreed-upon criteria for evaluating judges, every judge should find a way to assess his or her performance, perhaps by creating and using a personal "report card."

   * As ambassadors of the law, judges are "always on duty" and should both understand and convey to a larger audience the meaning of the rule of law.

   * Clerks are vital, not least as a source of inspiration, friendship, knowledge, diversity, and--yes--work.

   The article concludes by suggesting that judges must know how to build a fire, when to build a fire, and when it is best to wait, all of which is to say that they must place their legal and judicial lives in perspective. The judge who learns when, how, and why to build a fire--real or metaphorical--will better serve the law and the interests of justice.

2. THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES (1)

   1. The Court, the Military Justice System, and Procedure under the Uniform Code of Military Justice

      The United States Court of Appeals for the Armed Forces comprises five civilian judges who are nominated by the President, confirmed by the Senate, and appointed to fifteen-year terms. The Court was created in 1951 following World War II, during which there were approximately 1.7 million courts-martial. (2) These courts-martial were conducted in accordance with the Articles of War of 1920 and the Articles for the Government of the Navy of 1937. These Articles, it is fair to say, had more in common with the times and practices of George Washington's Continental Army than they did with emerging twentieth century concepts of due process and justice. (3) Stated simply, many returning veterans, including a number recently elected to Congress, were not satisfied with the modicum of justice and due process they had observed during the War. (4) The United States military needed and deserved something better.

      A new Uniform Code of Military Justice was drafted, signed into law in 1950, and implemented in 1951. (5) As stated in the Preamble to the Manual for Courts-Martial, the purpose of military law and thus of the Code is "to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States. (6) Among other things, the Code sought to regulate the influence of command, and to enshrine the concept of civilian oversight, in the form of a civilian appellate court to hear appeals. (7) Additional significant reforms to the Code were made with wholesale legislative amendments in 1968 and 1983, including the adoption of the position of military judge. In addition, change has come more incrementally through statutory amendment and case law interpretation and adjustment.

      Jurisdiction under the Code is based on service status. (8) That is, a member of the military is subject to the Code whether he or she is on or off duty, anywhere in the world, provided that he or she is a member of the Armed Forces at the time. Jurisdiction extends to reservists and members of the National Guard as well, when they are serving in a federal status. The offenses tried under the Code are exclusively criminal, the vast majority of which involve common-law crimes like murder, rape, and larceny, as well as military crimes, like desertion and insubordination. The Code also incorporates by reference or assimilation the federal criminal code and state law.

      In the United States military justice system, the trial court is known as a court-martial (9) and there are no standing trial courts. Courts-martial are convened for the purpose of trying a particular case or cases. However, there are lawyers, known in the military as judge advocates, designated to serve as full-time military judges. Charges are brought by senior commanders, who are known for this purpose as convening authorities, because they convene courts-martial. Indeed, one critical difference between military and civilian practice is the role of the commander.

      The commander is a--if not the--central actor in the military justice system. This is intuitive with respect to non-judicial punishment, which is a process of administrative punishment provided by the Code to commanders as a disciplinary tool. (10) However, it is also true of courts-martial. To start, the commander helps to set the command climate in a unit. For example, he or she will set the example and tone regarding the unit's attitudes toward sex, sexual harassment, discipline, and the use or abuse of alcohol and pornography. Depending on the level of command, the commander, as well as subordinate commanders, also exercises budget and command authority over the personnel and units responsible for investigating allegations of crime. In a deployed setting this may involve choices between MPs and investigators serving in a security, infantry, or enforcement role. The commander, as convening authority, also initiates charges, brings charges, and selects the officers and/or enlisted personnel who will serve as members (11) of the court, if the accused has elected to be tried by members rather than judge alone. The commander also must review the results of courts-martial. Where permitted by law, the convening authority may also grant clemency to a convicted service member.

      In terms of rights, there are a number of essential differences between military and civilian practice. For example, a service member is entitled to a military defense counsel, without cost, all the way to the Supreme Court of the United States, regardless of his or her financial means. Although a service member can pay for civilian counsel instead, this means that at a typical court-martial the United States and the defendant will be represented by lawyers of comparable training and experience.

      In addition, while the rules of evidence are virtually the same as in federal civilian practice, there are a number of procedural differences, and here it should be noted that the differences do not always accrue to the benefit of discipline and the government and to the detriment of the service member. Indeed, many of the rights granted service members and the procedures designed to protect those rights in military proceedings are designed to account for the potentially coercive influence of the chain of command and grade differentials in military life. Among other things, members of the military are entitled to a rights warning similar to a Miranda warning, not just when they are in custody, but at the moment when they are suspected of an offense and subjected to questioning. 2 In contrast, a service member's first and fourth amendment rights are more constrained than those in civilian life, taking into account the differing nature of civil and military life.

      And although, as in civilian practice, a vast majority of military cases are resolved through pleas and plea agreements, the judicial inquiry into whether a plea is knowing and voluntary is more searching in military practice. The inquiry to ensure that the plea colloquy satisfies the elements of the offense is more searching as well. (13) Finally, military sentencing is conducted on an individual basis without reference to sentencing guidelines. (14)

      In the case of a conviction, the appeal of right is to a service appeals court composed of senior judge advocates designated to serve in the role of appellate judges. Thus, there are Army; Navy and Marine Corps; Air Force; and Coast Guard Courts of Criminal...