The need for experiential diversity on the bench

As for us, our days of combat are over. Our swords are rust. Our guns will thunder no more. The vultures that once wheeled over our heads must be buried with their prey. Whatever of glory must be won in the council or the closet, never again in the field. I do not repine. We have shared the incommunicable experience of war; we have felt, we still feel, the passion of life to its top.

Oliver Wendell Holmes, Jr. - The Soldier's Faith

It is often said that the best judiciary is one that has the broadest perspective. In recognition of this premise, the past decades have seen a concentrated effort by decision makers to increase diversity on the bench. Originally focused on members of protected classes, efforts in recent years have expanded to include geographic, social, economic, and experiential diversity. Despite these efforts, one group has seen a historical decrease in representation over the past 50 years - military veterans. Thankfully, these circumstances have not resulted in the complete absence of veterans on the bench. However, the judiciary is not fully benefiting from veterans' unique training, experience, and desire for selfless service. A concerted effort to elect and appoint veterans throughout the state will enrich California courts in countless ways.

Veteran Jurists: By the Numbers

Oliver Wendell Holmes, Jr., served both as a Union Army Officer in the Civil War and later a Massachusetts Supreme Court Chief Justice as well as a U.S. Supreme Court Justice. U.S. Supreme Court Justice Frank Murphy first served in Europe during World War I and later volunteered during World War II, completing his service at Fort Moore (then Fort Benning) during recesses in the high court's calendar. On the United States Supreme Court today, only one of nine sitting Justices served in the military. Justice Alito served a short stint on active duty followed by several years in the reserves. Although a historic low, over the past one hundred years, our nation's High Court has consistently had one to two military veteran jurists at any given time. It is worth noting, however, that World War II was the last major conflict in which any U.S. Supreme Court Justice served.

The California Supreme Court, by contrast, currently has no military veterans amongst its jurists. Although difficult to ascertain because the state Legislature did not require the Judiciary to collect statistics regarding veteran status alongside other categories such as race and gender until 2013, it appears that over the past forty years, only two state high court Justices served in the military: retired justices Armand Arabian and Ming Chin. By contrast with the U.S. Supreme Court's dry spell following World War II, Justice Chin's service included a year in Vietnam during that conflict. A frequent contributor to the Daily Journal on veterans' issues, Fourth District Associate Justice Eileen Moore also spent time in Vietnam as a combat nurse.

Based on the data collected over the last decade, only six California Court of Appeals Justices and 58 Superior Court Judges are veterans. These numbers are striking, given that they are following a period in which the United States engaged in two separate but simultaneous conflicts for nearly two decades following the Sept. 11, 2001 attacks on the United States.

Unique Experience and a Desire to Serve

Both military attorneys (i.e., Judge Advocate General (JAG) officers, and non-JAG veterans, including infantry, naval, air officers, etc.) have a unique experience and skills developed in service of the country from which the state judiciary, and the citizens of California, should benefit. Service in the U.S. military means having worked in one of the earliest integrated large institutions in America and currently one of the most diverse organizations in the world. The fact that both Justices Chin and Moore served in Vietnam nearly fifty years ago at this point are testaments to that fact. In addition to the experience working inside such a diverse organization, a veteran seeking election or appointment to the bench is likely to have spent time serving in any one of 178 countries where the U.S. military currently has a presence. Furthermore, while the vast majority of the military is recruited from the middle class, the military is relatively unique because it also draws from the economic extremes of our society to act in unison to accomplish its collective mission. Service in this broadly diverse type of organization is a perfect training ground for helping California's diverse citizenry navigate the difficult criminal, family, probate, civil, and dependency issues Californians face in courts throughout the state.

As this issue of the Daily Journal highlights, attorney veterans have served as JAGs, while others served as pilots, nurses, infantry, or intelligence officers. Amongst the services, all branches except the newly created Space Force have dedicated JAG Officers. Those JAG Officers deploy to countries around the world and deal with a wide range of complicated legal problems, many of which are hard for civilian attorneys to even imagine. In addition, both JAG and non-JAG veterans are formally trained in leadership and expected to lead from an early stage in their careers. Due to the unique nature of military service, they are adept at managing budgets, personnel, and bureaucratic challenges, while also expected to be proficient in their technical job. Perhaps most importantly, the pool of military veteran attorneys available for election or appointment are dedicated lifelong public servants, most of whom are constantly scanning the horizon for further ways to serve, because service is baked into their identities.

A Call to Action

The state Legislature and Judiciary have rightfully placed a continuing emphasis on building government branches that reflect the broader society. One area that needs focused effort is the recruitment of veterans to serve in the judiciary throughout the state. Veterans offer invaluable legal experience and leadership which would make an immediate contribution to the courts.