The Campaign Against Judge Newman Underscores the Downfall of the Federal Circuit

How much damage is Chief Judge Moore doing to the institution that is the Federal Circuit? That question is hard to answer in the present, but there is no doubt that she is causing the type of damage that will linger and perhaps ultimately lead to the downfall of the court itself.

Even before the latest episode in which Chief Judge Moore has taken it upon herself to impeach Judge Newman, acting as complainant, investigator, witness and decider, it had become common for many in the industry to ask openly whether the Federal Circuit had outlived its usefulness.

Let’s be honest, the Federal Circuit was created to bring certainty and stability to patent law, yet today they do neither. Decisions from the court have increasingly become panel dependent over the years. Now, thanks to Judge Moore, we have had a retirement and reassignment to allow her upon request for rehearing to flip her dissent into the majority opinion. That is unconscionable, and it is unforgivable for the Supreme Court to have done nothing, refusing certiorari in what should have been a layup— the very poster child for judicial activism and overreach.

A Farce and a Fairytale

But now we have Chief Judge Moore withdrawing Judge Newman from all assignments and removing or restricting her computer access all based on hearsay (and clearly erroneous) allegations that Judge Newman is no longer mentally competent and that she is slow to issue decisions. It is a farce, fairy tale and outright misrepresentation to pretend Judge Newman is not working, as Chief Judge Moore’s complaint insinuates. Judge Newman is meticulous, and she writes many dissents explaining in point-by-point detail why her colleagues are wrong— and she is almost always right. Dissenting takes great effort, and she painstakingly gives the court history lessons explaining why this decision or that decision of a panel ignores or functionally overrules precedent that should only be touchable en banc.

Moreover, in speaking with Judge Newman’s former clerks, we’ve learned that in the era before word processing was commonplace it was not unusual for Judge Newman to go through 50 or more drafts. Newer former clerks tell me Judge Newman takes a hands-on approach to editing, tracking changes, because she is more computer literate than many of the other judges, and still it is not unusual for her to go through 20 or more drafts. So, it is just inaccurate to suggest that Judge Newman is not working, and it is ridiculous to pretend that her speed (or lack thereof, as the result of her attention to detail) is anything new. In speaking with numerous people who are familiar with the Federal Circuit, Judge Newman’s speed to issue decisions has been something every Chief Judge has faced since she joined the court. So, why now is this suddenly an impeachable matter?

Regardless of whether there will be any long-term deleterious effects for the Federal Circuit, Chief Judge Moore is not winning friends or allies and is destroying her own reputation.

There is a reason why few in the industry are speaking out publicly on behalf of Judge Newman. Everyone I speak with is afraid of retribution, and specifically fearful of retaliation from Chief Judge Moore. There is real fear that anyone who might stand up for Judge Newman would draw the ire of Chief Judge Moore, and every firm that does any form of litigation is prohibiting attorneys from saying anything publicly on this matter. That so many in the industry fear Chief Judge Moore is particularly worrisome and speaks to a lack of trust and deep suspicion, which is harmful to the administration of justice.

Unreasonable and Un-American

So, where does Judge Newman stand? It is hard to say because Chief Judge Moore has issued a gag order, which itself is rather unbelievable, given that she is trying to unseat an Article III constitutional officer. We also have learned that Moore has denied the very reasonable and common request for a transfer to another Circuit. So, Moore will remain the complainant, witness, investigator and decider— which is absolutely un-American.

If everything is above board why the gag order? If this is just about removing a mentally incompetent judge, why refuse a transfer order when you yourself will be a witness because your complaint only alleges secondhand hearsay? And for goodness sakes, where are the other Judges on the Federal Circuit; are they as afraid of Chief Judge Moore as the bar is?

Frankly, the longer this goes on and the more unrelenting and unreasonable Chief Judge Moore becomes, the more apparent it becomes who it is that is really unfit for service on the court. The chilling effect these actions are having are not healthy, or wise, and work only to undermine the credibility of the Federal Circuit.

Image Source: Deposit Photos
Image ID: 24070441
Author: viperagp