Chief Judge Moore v. Judge Newman: An Unacceptable Breakdown of Court Governance, Collegiality and Procedural Fairness

“The investigation…is fast becoming a credibility issue for the Chief Judge and the court as a whole…. No one questions the responsibility of a court to police itself, if it can. But when, as here, that involves a conflict and the internal process appears to be failing, another path should be pursued.”

Federal CircuitAnyone reading this by now knows of the current situation with Judge Pauline Newman and the investigation initiated by Chief Judge Kimberly Moore. As a former chief judge of the Court of Appeals for the Federal Circuit, I understand the challenges of overseeing smart, independent, and strong-willed judges, and I’ve gained a somewhat unique perspective on the ongoing saga, albeit as an outsider.

As an outsider no longer privy to inner court workings, I’ve refrained from publicly commenting on Judge Newman’s situation. It’s not my position, after all, to opine without knowing the facts, or to reflexively second-guess Chief Judge Moore, the Special Committee, or the Federal Circuit Judicial Council.

Events have now reached a point, though, where I feel compelled to publicly ask why the court isn’t taking what seems to be the wiser, less disruptive path for resolving the situation. Four other chiefs preceded me, and three followed. This is the first time in the history of the Federal Circuit where an internal dispute has been allowed to mushroom into an unprecedented public fight.

The Concern: Integrity, Justice, Fairness

To be clear, my concern is three-fold: First, the integrity of the court; second, the interests of parties seeking justice at the Federal Circuit; and third, procedural fairness and balance to Judge Newman, as well as the other Federal Circuit judges. All are of equal concern, and continuing the status quo is no way to ensure swift and efficient justice, which depends on litigants and the public having confidence and trust in the court and its judges.

As to the issue of fairness, consider that, contrary to established norms that alleged sanctionable conduct must be judged by an impartial judge, here the Chief Judge and the Special Committee are continuing to act as accuser, investigator, prosecutor, and judge. That would not be acceptable in any other circumstance, and I’m hard-pressed to see how it can be acceptable here. It cuts against the very foundation of due process, as well as raising thorny constitutional concerns. An unfair process risks damaging the legacy of all the current judges agreeing to what appears to be a conflicted process.

Although this conflict of roles was noted early in the investigation in an article in IPWatchdog by its publisher, Gene Quinn, the Chief Judge and the Special Committee still have not changed course. As the Supreme Court said in In re Murchison in 1955, “It would be very strange if our system of law permitted a judge to act as a grand jury and then try the very persons accused as a result of his investigations.”

The investigation, initiated by the current Chief Judge against the court’s longest serving member, is fast becoming a credibility issue for the Chief Judge and the court as a whole. It has already become a personal tragedy for the target of the investigation, Judge Newman. Initially, she was charged with physical and mental disability—the latter being perhaps the most serious accusation one can make against a fellow judge. Now, she is also charged with alleged misconduct for not complying with the Special Committee’s orders to produce medical records, to undergo “a neurological examination and a complete neuro-psychological battery of tests,” and to sit for “a video-taped interview” with the Special Committee.

The Court Cannot Fix This Itself

The fight is now very public, already an embarrassment to the court and, potentially, later to the entire federal judiciary. On top of the numerous news stories, dozens of documents (all publicly filed in a lawsuit in federal court in the District of Columbia, after being released by the court) lay bare the extensive details of the allegations against Judge Newman and her responses to the allegations.

Judge Newman denies the key allegations made by the Chief Judge and endorsed by the Special Committee (which is composed of the Chief Judge, as well as Judges Prost and Taranto, who were appointed by the Chief). So far at least, their actions have been backed by the court’s Judicial Council, which includes all its active judges (minus Judge Newman).

Like the Chief Judge and the Committee, the Council has also declined requests by Judge Newman’s lawyers to transfer the matter to another Circuit’s Judicial Council. Their members, unlike the Federal Circuit’s, would be able to make a disinterested assessment of the facts about the alleged disability, without being entangled as witnesses at a final hearing. Those judges would also be free of any subconscious pressure from their chief or colleagues.

One must also ask: when do the accused’s lawyers get to cross-examine the witnesses against her and present evidence on her side? Along with an impartial adjudicator, that seems the essence of fairness in our system. In the words of Professor Wigmore, “Cross-examination is the greatest legal engine ever invented for the discovery of truth.”

At this point, only one thing is clear: Chief Judge Moore and Judge Newman flatly disagree about the most basic and critical facts about the alleged impairments. Each accuses the other of having the facts all wrong. I do not know the true facts. No way I could.

The Broader Impact

What I care most about, however, are the court itself as an important institution and the negative effects on parties with pending and upcoming cases. This unseemly, bitter, and public controversy is, I believe, hurting the court and alarming companies, innovators, veterans, government employees, and others with business before the court. As the infighting grinds on and as emotions continue to flare on each side, it could ultimately besmirch the entire Judiciary.

The controversy has been featured in the legal press on numerous occasions, and has even found its way, not surprisingly, into the Washington Post. Additional press attention can be expected. By all accounts, the court appears in serious disarray.

Speaking from experience, an internal court matter such as this is almost certainly having an impact on the adjudication of cases before the court. Even if not, it undermines the public’s confidence in the court. Our judicial system falls apart if the public does not trust the process and the judges.

Throughout the spring, Judge Moore and the Special Committee repeatedly added charges and factual allegations, also barring Judge Newman from hearing new cases.

In turn, Judge Newman stepped up her response by filing her lawsuit in federal court in Washington, D.C. Then, on June 27, her lawyers sought a preliminary injunction to stop the investigation, which they argue has no factual or legal basis and violates due process and the applicable statute in disability and misconduct.

Reports now indicate that Judge Newman, at her own volition, underwent an independent neurological examination (by Ted L. Rothstein, MD—a board-certified neurologist and a full Professor of Neurology and Rehabilitation Medicine at the George Washington University School of Medicine & Health Sciences). According to those reports, Judge Newman was found to be medically and mentally fit to “participate in court proceedings.”

That reporting comports with the clarity of her talk at the Fordham conference in April which I, among many others, heard. Oral argument recordings during the period under investigation do not seem to indicate any perceptible change in her typical approach to questioning advocates. Others who have talked with her privately say much the same. These reports only deepen the chasm between the two sides—further calling out for a neutral arbiter of the dispute.

Several people have called me saying they are aghast at how this matter is being handled by the Chief and the court. But practically no one is willing to say so publicly.  And of course, we don’t know the facts, so the Chief Judge’s allegations may well be adequately supported by internal evidence.

Better Options

At any point, the matter could have been transferred to the council of another circuit court. It still can be. Judge Newman’s case seems to be a textbook example warranting transfer. Her district court motion asserts that, since 2006, “every single complaint of misconduct against a circuit judge that was not summarily dismissed has been transferred to another circuit’s judicial council for investigation.”

Transfer would allow judges in another circuit, say the council of the D.C. Circuit or the Fourth Circuit, to review the allegations, pursue the investigation, and conduct factfinding, all without being tainted as factual witnesses about the alleged impairment and without being swayed by inherent and subconscious personal biases.

The matter could theoretically be resolved by some neutral person, perhaps a mediator. After all, judges routinely order litigants to proceed through mediation. While that would require the consent of both sides, which has appeared unlikely to this point, a development in the district court action may be a ray of light.  On Thursday, July 6, U.S. District Judge Christopher Cooper (who was assigned the district court case) recognized that the dispute “is obviously of great sensitivity as well as importance to both the Federal Circuit bar and the public in the courts more generally.” According to reporting, Judge Cooper remarked that “this case really cries out for some type of mediation.”

If the Federal Circuit Judicial Council remains steadfast in not requesting transfer to another circuit, perhaps Chief Justice Roberts, the Judicial Conference’s conduct committee, or the Judicial Conference itself could step in—to avoid further reputational damage to the judiciary and to minimize the concerns of litigants.

No one questions the responsibility of a court to police itself, if it can. But when, as here, that involves a conflict and the internal process appears to be failing, another path should be pursued.

Time stops for no man or woman, and we all live with certain inevitabilities. Not all, but some of us will have the good fortune to be blessed with clarity of mind through the end. No one, for instance, ever reasonably accused Justice Ginsburg of being mentally unfit to remain on the bench, despite her declining physical stature. Perhaps that is true here.

Let’s End This to Save the Court

The most important point, ultimately, is that the warring parties seem stuck on a path of mutually destructive and seemingly endless struggle. There is also the issue of procedural fairness to Judge Newman. At this point, transferring the investigation to the judicial council of a different circuit court seems most preferrable, as opposed to continuing the horrific battle now raging in which everyone involved is getting further tarnished, including the court itself.

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Author: viperagp


Warning & Disclaimer: The pages, articles and comments on do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of

Join the Discussion

20 comments so far.

  • [Avatar for Anon]
    July 13, 2023 10:49 am


    Behind a paywall, but Judge Newman has provided additional statements including questions that sound in your questions (i.e., exactly when did these ‘concerns’ start being generated?)

    Chances may be good that another incident with Chief Judge Moore (her very shady turning of her own dissent into a majority position sua sponte when Judge O’Malley retired).

  • [Avatar for Anon Ymous]
    Anon Ymous
    July 11, 2023 01:25 pm

    What is the real reason why the judge is being targeted? Does anyone know?

    Sounds like she’s currently deciding an important case and one of the parties suspects it won’t be decided favorably.

  • [Avatar for B]
    July 11, 2023 12:47 pm

    @ Randall R Rader

    Thank you for your input. You and Judge Newman were both adjuncts when I was in law school, and reading Judge Newman’s decisions gives me confidence in her mental capacity.

    That said, the real question isn’t about Judge Newman’s mental acuity. The real question (and most of the readers here would agree) is who exactly is attacking her and why?

  • [Avatar for Randall R Rader]
    Randall R Rader
    July 10, 2023 11:06 pm

    As one of the three Chief Judges to follow Chief Judge Michel, I commend his thoughtful and thorough analysis of the embarrassing and damaging petition challenging Judge Newman’s competency and compliance with Judicial Council orders. I would guess that all of those Chief Judges, including me, dealt with delicate issues involving aging colleagues, yet these occasions did not engender vast controversy and violations of medial privacy. I wished to add just a few thoughts from my perspective.

    Shortly after learning of the petition questioning Judge Newman”s competence, I called her directly. We spoke of old memories and new developments, old cases and new cases, doctrinal divisions and directions at the Federal Circuit. In sum, within five minutes, I could easily and confidently assess that Judge Newman was as mentally sharp and capable as she had been for more than 40 years that I have known her well. Indeed since that conversation, we have spoken at least once a week at all times of the day and evening. In all of those conversations, including a couple in person meetings, I have not detected the slightest slippage in her mental acuity. Judge Newman’s current colleagues must have the same opportunities to assess for themselves her abilities. Thus, this prolonged proceeding, especially in the face of her entirely successful cognitive medical examination, becomes even more puzzling.

    As Judge Michel notes, this case would be more fairly adjudicated in another court whose only motivation would be to protect the public performance and image of the federal judiciary. The district court’s suggestion of a mediator might also provide the neutrality and perspective necessary for a fair resolution. I might suggest, however, that the better outcome would be a few face-saving procedures to permit the court to say it has addressed the petition followed by a unanimous rejection of the petition as contrary to Judge Newman’s demonstrated competence.

    By the way, in the course of those face-saving proceedings, I would urge the Federal Circuit to refrain from releasing medical speculation and other open assertions violative of basic privacy rights. Nothing is more unseemly than the release of accusations about private medical conditions, especially when other facts contradict and impeach those charges. Judges, above all other responsibilities, must respect and defend individual rights, including medical privacy. Moreover if the court sees the wisdom of taking the most expeditious approach of rejecting the petition, the court should at that time take the opportunity to apologize to Judge Newman for compromising her privacy rights.

    Meantime the court’s reputation continues to hemorrhage. It is time for the court to stop the bleeding and to welcome its most senior judge back to her revered place at head of the other judges.

  • [Avatar for Thomas Jackson]
    Thomas Jackson
    July 10, 2023 10:55 pm

    Pauline Newman is now 95 years young. The Council has taken away her three clerks and ability to serve. When Judge Newman was allowed to be active in her 80’s (and early 90’s), Judge Newman wrote many dissenting opinions which were her hallmark. I frankly do not understand Kimberly Moore’s reaction and pray that former chief judge Michel is able to convince Ms. Moore to transfer this fiasco to the 4th Circuit. I wonder if Chief Judge Moore is politically motivated. She and her council certainly have no compassion. A quote from Shakespeare’s Julius Caesar: “I have come to praise” Pauline Newman.

  • [Avatar for Anon]
    July 10, 2023 09:14 pm

    Well Ron,

    You (and those pesky little facts too) must have served as “former clerks of Judge Newman” (leastwise, given FCP’s anguish).

  • [Avatar for Ron Katznelson]
    Ron Katznelson
    July 10, 2023 07:56 pm

    FCP’s conclusion that Judge Newman suffers from “classic signs of advancing dementia” has been merely the alleged reason which the Complaint against her cited for the alleged result – – that Judge Newman’s productivity declined to an unacceptable level. But what if the Complaint’s alleged result is fiction? Any allegation of the reason for such a purported productivity decline must be discredited and dismissed on its face when actual productivity evidence does not support this alleged result.

    See my detailed statistical study described at . For example, results in Table 2 and Figure 1 show that the relative decline in the number of authored opinions attributed to four (4) of Judge Newman’s colleagues on the court was more precipitous than the relative decline in such productivity attributed to her during the period of her alleged disability. According to FCP, these four Circuit Judges must be suffering from even more serious “signs of advancing dementia.”

  • [Avatar for Anon]
    July 10, 2023 04:48 pm


    Your blinders are incredible. Your gaslighting as if ALL fault is Judge Newman’s and only her “former clerks” are propping her up take a special dose of ignoring any and every thing that you happen not to like to maintain your desired narrative.

    Any dementia (your accusation) is most likely your own.

  • [Avatar for Pro Say]
    Pro Say
    July 10, 2023 02:15 pm

    Judge Cooper: “this case really cries out for some type of mediation.”

    Sorry, Judge. What this case really cries out for is . . . the dissolution . . . of what has become a constitutional cancer on the American Judiciary.

    FCP: “The Federal Circuit will survive this situation without harm to its reputation.”

    George Orwell would be proud.

    Combined with their repeated refusal to follow SCOTUS’ severely-limited (though unconstitutional), carefully-cabined limit on patentable subject matter, the time has come for Congress to shut this kangaroo court down.

    Shut. It. Down.

  • [Avatar for Federal Circuit Practitioner]
    Federal Circuit Practitioner
    July 10, 2023 12:50 pm

    It sad that Judge Newman stonedwalled the special committee and that her former clerks fanned the publicity including the many leaks.

    It also unfortunate that Paul Michel made little mention of Judge Newman’s lack of cooperation. It is difficult for the Judicial Conference to undertake an investigation when the person to be investigated refuses to participate (including refusing something as basic as accepting service of legal documents).

    I have serious concerns whether her former clerks — one who heading up the litigation from a right-wing legal advocacy group — are manipulating a person with dementia for their own interests.

    Dementia is not 100% disabled. There is a range of disability and it can shift by the hour or the day — sometimes there are good periods and sometimes not. The allegations that have been made public such as the inability to watch a short video and immediately thereafter answer basic questions about the video or the paranoia concerning missing emails and computer files are all classic signs of advancing dementia.

    Judge Newman could have quickly and easily dispelled any then-private concerns by simply cooperating. A neuropsychological evaluation is much more thorough than an office visit with a neurologist.

    The Federal Circuit will survive this situation without harm to its reputation.

  • [Avatar for CW5]
    July 10, 2023 12:49 pm

    Thank you Judge Michel for this important statement. I’m sure it was not easy to write, but it had to be said. How can the public have confidence in the judgment of a court when that court cannot see its own inherent conflict of interest?

  • [Avatar for Anonymous]
    July 10, 2023 11:36 am

    Where does the PTO fit in if at all?

  • [Avatar for Marc Ehrlich]
    Marc Ehrlich
    July 10, 2023 10:08 am

    Thank you for this important article Judge Michel. I agree with you that this situation could and should have been avoided and can still be, despite the already tragic impact it has had on Judge Newman and the credibility of the CAFC as a whole.

    I cannot imagine a conflict like this proceeding in this manner with the accuser refusing to relinquish its decision making authority in another part of government nor can I imagine this happening this way in any large corporate enterprise.

    The fact that court leadership refuses to subject itself to the very controls that all litigants before any court must themselves face, I believe likely speaks to the overall merits of their accusation as well as undermining public confidence in their ability to lead this public institution going forward.

    Despite its relatively short existence the Federal Circuit has not been immune to public controversies. The difference is in those cases the court leadership properly sought to remove the issue quickly from public scrutiny. For those of us who look to the CAFC as an important institution for US patent policy, it would be best for them to again quickly remove the issue from the public forum.

    Thank you for having the courage to write publicly on what I am sure is a very difficult matter for you.

  • [Avatar for Anon]
    July 10, 2023 09:46 am


    I agree that the destruction here is ultimately at the hands of Chief Judge Moore, and so with that, the culpability.

    (I also smiled at your temporary re-naming, and thought of doing similar, but alas, there is only one true and original Anon in this blogosphere space 😉 – and I am willing to ‘suffer’ the rare possible confusion by others either purposefully or unwittingly using the moniker, as my writing style and content is rather consistent)

  • [Avatar for B]
    July 10, 2023 08:53 am

    @ Judge Michel “The most important point, ultimately, is that the warring parties seem stuck on a path of mutually destructive and seemingly endless struggle.”

    Respectfully, while both parties are technically “stuck,” the fault is one-sided. Chief Judge Moore is ultimately to blame.

  • [Avatar for Not an Anon (B)]
    Not an Anon (B)
    July 10, 2023 08:45 am

    “At any point, the matter could have been transferred to the council of another circuit court'”

    The important question is “Why didn’t this happen – particularly after Newman requested such?” Newman obviously doesn’t trust her fellow judges. Personally, I don’t either. There aren’t three other CAFC judges who approach her intellect, and a number of CAFC judges are so flat out so incompetent they can’t accurately cite opinions they wrote the previous year.

  • [Avatar for Anon]
    July 10, 2023 08:35 am

    Oh the irony of the Federal Circuit refusing to transfer a case that actually screams for it. Perhaps Judge Newman should seek mandamus from them

  • [Avatar for Anon]
    July 9, 2023 10:50 pm

    Brother Anon,

    short answer: no.

  • [Avatar for Anon]
    July 9, 2023 04:08 pm

    Could this be the most important article ever published on IPWatchdog?

  • [Avatar for Anon]
    July 9, 2023 02:21 pm

    And of course, we don’t know the facts, so the Chief Judge’s allegations may well be adequately supported by internal evidence.

    Seeing as this very much as been “slipped” (pushed?) into the court of public opinion, the LACK of any such evidence only continues to damage one of the two parties here.

    If any one needs a hint, it is not Judge Newman being damaged by the lack of evidence.

    The incredulity of Retired Chief Judge Michel is (perhaps understandably) much TOO understated.