The Importance of Building Fires: Lessons Learned as a Judge on the United States Court of Appeals for the Armed Forces

I. 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. II. THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES (1) A. 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. …