Still ranting: Revisiting the proposal to eliminate or consolidate the CCAs

I don't have much time tonight, but I wanted to add a short addendum to last night's rant calling for the elimination or consolidation of the CCAs.

Several people in the comment section wrote about whether CAAF could take up the slack if the four CCAs were eliminated. The answer is: Yes, easily.

During FY 2008, the four CCAs decided 2,515 cases. In FY 2007, they decided 3,423 cases.

Back in FY 1987, when CMA was still a three-member court, it had 3,336 docket terminations. See 26 M.J. CXVI. And in FY 1984, it terminated 4,036 cases. See 20 M.J. CXXXI. So it's apparent that CAAF could handle the current combined workload because in the past it has handled that case load.

Let's also do a bit of comparison shopping. In 2002 -- the most recent year for which I could quickly find statistics (have I mentioned I'm under the gun tonight?) -- the Fourth Circuit decided 5,356 cases. For most of that year, it had eleven judges. So CAAF has 45 percent of the judicial staffing that the 4th Circuit had. Guess what 45% of the Fourth Circuit's 2002 docket would be -- 2,435 cases, which is close to the cumulative number of cases decided by the four CCAs last year. So a five-member court could handle that level of cases, assuming it sat in three judge panels.

But in reality, the workload would be far less for CAAF than it was for the 4th Circuit. Here's something that every 4th Circuit case decided in 2002 had in common -- they all raised issues. There's no such thing as a merits submission to the 4th Circuit. Compare that to the military. Last year, 43.8% of all the cases decided by the Air Force Court were submitted on the merits. I'll bet the percentage is even higher for the Navy-Marine Corps Court. Even using that number across the four CCAs, CAAF would actually be called upon to decide only 1102 cases raising issues. It could summarily deny the rest without even cracking the ROT's cover.

But wait, there's more. No doubt some not insubstantial subset of the 56.2% of the CCA appeals with issues raised only a sentence inappropriateness claim. But CAAF doesn't have sentence appropriateness powers. If the CCAs were eliminated, sentence appropriateness would no longer be a judicial decision, but would instead be confined to CAs, discharge review and clemency and parole boards, and the President's exercise of his pardon power. So whatever percent of cases that now raise only a sentence appropriateness issue would now be no issue cases, further reducing CAAF's workload. And, of course, CAAF would no longer have to review petitions first and then rereview those cases in which it grants the petition. Rather, there would be one streamlined process that would no doubt result in summary affirmance for the great majority of cases and more searching analysis of more difficult cases, just as is now the case with the Article III courts of appeals. (Of course the factual sufficiency function would also disappear with the CCAs, but it's very rare to see a factual insufficiency claim raised that isn't accompanied by a legal sufficiency claim, so that's unlikely to change the percentage of briefed cases.)

While the legislative history of the bill that expanded CAAF's size to five judges indicated that Congress contemplated the court would sit en banc in every case, CAAF doesn't appear to actually be compelled to do so. In other words, even without a statutory change, CAAF could start sitting in panels while allowing for en banc review when appropriate -- such as to resolve splits between or among panels. If the CCAs were eliminated, CAAF should move to such a system.

So CAAF could manage its own workload simply by no longer reviewing no issue cases on its own and by moving to sit in panels.

CAAF is a highly professional court with superb resources, including an outstanding library staff, a court executive, an efficient clerk's office, a central legal staff, and a couple of in-chambers clerks and a couple of in-chambers secretaries for each judge. The court has the spare capacity to take on all of the CCAs' cases with no increase in funding.

What if, several years down the line, military justice caseloads drastically increase? That seems unlikely to happen. But if it were to happen, then we could throw money at the problem then. But the possibility of having to increase CAAF's size later (which, again, strikes me as a low-probability contingency) shouldn't lead us to waste millions of dollars annually now to preserve excess capacity. The federal government simply doesn't have the resources to do that anymore.

Finally, the issue of waivers of appellate review as a PTA term came up in the comments. As I demonstrate above, we could eliminate the CCAs and have CAAF provide appellate review for every case now reviewed by the CCAs without increasing CAAF's staffing. So it isn't necessary to allow for waiver of appellate review as a PTA term to accommodate the CCAs' elimination. That said, I favor allowing waiver of appellate review as a PTA term regardless of whether the CCAs are eliminated. And I favor eliminating the CCAs regardless of whether waiver of appellate review is allowed as a PTA term. Obviously my first choice would be a system in which waiver of appellate review is allowed as a PTA term and in which the CCAs are eliminated and all court-martial convictions can be appealed to the Court of Appeals for the Armed Forces.