When Judge Pauline Newman helped create the U.S. Court of Appeals for the Federal Circuit in 1982 to have exclusive jurisdiction over patent cases, no one could have guessed the drama that would follow almost 40 years later. The drama, in her view, is now forcing her to choose preserving the entire structure of American government over the court she loves.
In April, Gene Quinn broke the news on IPWatchdog about a complaint filed by Chief Judge Kimberly Moore of the Federal Circuit against Newman for being unable to effectively discharge the duties of her office. Days later, Newman showed up and spoke at Fordham Law School’s annual IP conference in New York, speaking with an eloquence that completely undermined the foundation of that complaint. And recently-retired Federal Circuit Judge Kathleen O’Malley sat right next to Newman at that conference looking towards her with admiration and affection. Even if Hollywood’s writers weren’t on strike, they couldn’t have scripted it better.
However, recent media interviews with Newman revealed that those events were only the tip of the iceberg of this drama. Newman only discovered something was afoot when the Chief Judge – along with two other Federal judges of a Special Committee formed to investigate Newman – confronted Newman in-person with a demand that she resign or take senior status. “Just go quietly or we’ll make your life miserable,” Newman said she was told.
A short time later, 88-year-old Federal Circuit Judge Alan Lourie showed up at Newman’s Watergate (yes, that Watergate) apartment to also try to convince her to resign. By that point, he told her, the Chief Judge already managed to convince the rest of their colleagues that Newman was “totally disabled physically, and mentally incompetent.” When Lourie said he “had no reason to disbelieve” that, Newman signaled for Lourie – her Watergate complex neighbor and colleague for over 30 years on the court– to leave.
The news of the complaint and Newman’s appearance at Fordham crushed the plan for Newman to “just go quietly.” Since that time, former Federal Circuit Chief Judges Michel and Rader have publicly sided with Newman. Michel highlighted “the conflicted process” where “the Chief Judge and the Special Committee [ ] continu[e] to act as accuser, investigator, prosecutor, and judge” by denying a request to transfer the investigation to another federal court of appeals.
Yet, noticeably, all of the judges still on the Federal Circuit and most of her former clerks have remained silent.
The one notable exception: Newman’s former clerk, Greg Dolin. In his role as Senior Litigation Counsel at New Civil Liberties Alliance (NCLA), he is leading the legal fight against ousting Newman from the Federal Circuit. After Dolin filed a lawsuit in district court claiming that the Federal Circuit’s efforts are unconstitutional and convinced Newman to sit for a cognitive test, both sides have agreed to U.S. District Judge Christopher Cooper’s call for mediation.
On this episode of Clause 8, I spoke with Dolin shortly before that mediation is scheduled to take place in August, with retired D.C. Circuit Judge Thomas Griffith. We talk about how and why this drama got to this point, the problems with the Federal Circuit handling the process, how Newman has been able to emotionally deal with the fallout, why this fight is important beyond the Federal Circuit, what a potential resolution might look like, whether Dolin and Newman are preparing for potential impeachment proceedings, and much more!