An Open Letter to Circuit Judges on the Court of Appeals for the Federal Circuit

Friends and former colleagues,

If one of the members of our judicial “family” suffers some kind of health event, our first action should be to rush to help. Kindness and brother/sisterhood requires no less.

If I can recall some history on our circuit, when Dan Friedman or Giles Rich or others were suffering from declining health, we rushed as their friends and colleagues to offer help, support, and comfort. As Chief Judge, I visited Dan in the hospital once or twice a week for months and then reached out to other colleagues to ensure someone visited him every day. By the way, the most willing participant in our court support network was Judge Polly Newman.

Now we have heard allegations about Polly’s health. I can guarantee that those allegations are not accurate because I have seen her almost weekly for months. My point, however, is more simple: if you will reach out to her as friends and colleagues, you will quickly detect, as I have, that she is a marvel. She does not suffer from the slightest mental decline. At 96, her cognitive acuity and communication skills are the same or maybe sharper than 40 years ago or 30 minutes ago. As you know, she has passed professional tests of her mental competence with flying colors!

Actually, my point is not to announce my own observations or the public record on Judge Newman’s cognitive tests administered by professionals, my point is to emphasize the court’s culture and custom of caring. If you have any concerns about Judge Newman’s health, may I suggest that you and your colleagues reach out with kindness. Take turns visiting her at her home and in her office. And if your caring observations match mine, then your conscience can be your guide in finding ways to support YOUR colleague.

Friends and former colleagues, may I make one more observation? We have observed that the court has shifted from emphasizing Judge Newman’s competence to emphasizing Judge Newman’s “noncompliance” with certain orders and procedures. On that point, please consider the real meaning of judicial independence. By its terms, judicial independence allows each judge to define their own approach to their responsibilities. By its terms, judicial independence does not enforce a single unified approach to any single process or question, including the demonstration of competence. Please honor each of your colleagues’ approaches to difficult decisions that define the character of the court.

In sum, please make the court—OUR court—an institution with the compassion to care for each of its members. Please reach out with kindness to each of your colleagues. Please have the courage to exercise your own judgment and your own independent determination to act with kindness and consideration. After all, time acts on us all and you will each have need of compassion at some point in your professional careers as well as your private lives.

With a heavy heart,

rrr