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

“Please make the court—OUR court—an institution with the compassion to care for each of its members…. Please have the courage to exercise your own judgment and your own independent determination to act with kindness and consideration.”

Circuit JudgesFriends 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,



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Join the Discussion

13 comments so far.

  • [Avatar for Larry]
    September 26, 2023 11:47 am

    I am standing on the outside of the window- looking in…I do not personally know the judge in question. Neither am I an attorney or any member of the court.
    My statement is not meant to accuse or blame, but is merely a statement to have one search their heart(s)/motives to ensure that each person is doing what they would want done to them under similar circumstances.

    I am however, a healthcare provider- and a person who knows it is not impossible for someone to age without experiencing mental decline. You all may be younger than Judge Newman today. But as time goes on and courts change hands you will eventually become Judge Newman. Doing so, this very case could push you out of office too…For whatever the political stance…
    Young and healthy today/Old or ailing tomorrow. I caution all to ensure your opinion is sound. As it not only effects judge Newman today, but each and everyone of you in the time(s) to come! “Do unto others as you would have them to do unto you.” It is an insurance policy for the future. You will get back what you put out in…We just have to wait our turn. So, be very careful; For God is watching and listening and he promises to stand in the gap for each of us.
    “You will reap what you sow and whatsoever you sow, so shall you reap.” If you sow good- good you will reap

  • [Avatar for Randall R. Rader]
    Randall R. Rader
    September 25, 2023 08:19 pm

    Dear Fellow IP Practitioner,

    I know Judge Newman’s attorney and can assure you that he is doing marvelously with very limited resources. I am sure, however, that Judge Newman would welcome assistance from Latham & Watkins, or Covington, or Finnegan or any of the other large IP firms with many more resources to devote to the enterprise. To date, none of them have offered any assistance to the Senior and Most Respected Federal Circuit judge. Can you imagine why?

    Your fellow practitioner, rrr

  • [Avatar for Anon]
    September 25, 2023 11:14 am


    You continue to have zero credibility with statements like, “this action that, by all objective evaluation appears needed,


  • [Avatar for Leery of Judges' Powers]
    Leery of Judges’ Powers
    September 24, 2023 05:51 pm

    Thanks for taking the compassionate approach, Judge. But really, the facts as to “incompetence” have not been proved, so this looks more like a personal vendetta than a process that is intended to benefit the Federal Circuit as a whole. Indeed, we’ve all noticed that, as you say, “the court has shifted from emphasizing Judge Newman’s competence to emphasizing Judge Newman’s “noncompliance” with certain orders and procedures.” Which brings us back to personalities, not capabilities.

  • [Avatar for Federal Circuit Practitioner]
    Federal Circuit Practitioner
    September 22, 2023 07:38 pm

    I want everyone that thinks “Chief Judge Moore” is out to settle some philosophical or political vendetta to really stop and think about what has transpired. This could have been resolved in a day. It didn’t.

    Instead, the obligation to address what has clearly become an issue with the administration of justice had to be dealt with. Judge Moore may well be the face of this action that, by all objective evaluation appears needed, but one must remind themselves of a basic fact: more than one dozen people, nominated by the President, confirmed by the Senate, and sworn to uphold the Constitution and the laws of the United States, saw fit to impose this result. I can’t fathom how anyone can look at the facts and consider this a vendetta or somehow os improper. I can’t believe it is.

  • [Avatar for Anonymous]
    September 22, 2023 02:28 pm

    By Statute, the United States Judicial Conference (

    “Exercises authority provided in the Judicial Conduct and Disability Act (28 U.S.C. §§ 351-64) to review circuit council judicial conduct and disability orders.”

    So, how is it not a violation of Standard Protocol for Chief Judge Moore and her merry band of fellow haters on the CAFC to usurp this authority to itself in an apparent attempt to achieve what appears to be either a political or personal agenda?

  • [Avatar for Pro Say]
    Pro Say
    September 22, 2023 02:17 pm

    Well said, Your Honor. Well said.

    Indeed, Polly’s cognitive capabilities easily and clearly surpass those of our President and some number of Senators and Congressional members. Folks who have a far greater influence on America.

    And yet, there they all stand.

    Free of being subjected to any mental capability tests.

  • [Avatar for Connor]
    September 22, 2023 11:14 am

    Thank you for speaking up, Judge Rader! If this is how the current judges on the Federal Circuit treat a fellow judge, how can ordinary people with business before the court have confidence that they will be treated fairly? Heaven forbid you make one of them angry somehow.

  • [Avatar for Gene Quinn]
    Gene Quinn
    September 22, 2023 10:42 am


    I agree 100%. The selective application of standards and laws is astonishing. Perhaps it has always been this way and we just have more insight and better knowledge today, I don’t know. It is disheartening and scary.

    I don’t think these Judges understand what they have done. If it is fair for them to challenge a colleague it would seem appropriate for the public to start to question the mental competence of these Judges when they say truly ridiculous, idiotic things– like the Chief has said with respect to the need to disclose both known and unknown embodiments to satisfy the written description requirement. How can a mentally competent person actually say the industry must disclose what they do not know?

    This is a very dangerous path, and no appreciation or recognition of what it will mean has been demonstrated by anyone on the Court.

  • [Avatar for Anon]
    September 22, 2023 09:22 am

    Mr. Quinn,

    In a related thread I posted a comment about the lack of any sense of cognitive testing for members of other branches of the government that have shown FAR more serious lapses.

    On top of the disregard of the appearance of impropriety from Chief Judge Moore (and cohorts), we witness a very selective application of “concern,” which only feeds an already extremely polarized political environment.

    This is not good for anyone.

  • [Avatar for Anon]
    September 21, 2023 05:34 pm

    Kudos for standing up – you will surely be ‘rewarded’ with your own set of detractors.

  • [Avatar for Federal Circuit Practitioner]
    Federal Circuit Practitioner
    September 21, 2023 03:17 pm

    Randy Rader:

    If you can, please suggest to Judge Newman that she ditch the attorneys she has and find competent attorneys. Unfortunately for Judge Newman, her attorneys have dug a deep hole for Judge Newman and she is stuck with that past advocacy. Please read Judge Newman’s August 31st response and listen to the oral hearing — those submissions are bonkers; completely off-the-wall advocacy that do not help Judge Newman.

    With regard to whether or not Judge Newman suffers cognitive impairment, she could clear that up by taking the full medical examination that was requested by the committee. Stone-walling and then submitting half-baked medical reports (one with a 10-minute and the other a 11-minute examination) do not clear up the question. (One doctor was Judge Newman’s personal friend and the other late addition was a medical school classmate of her counsel.) Please keep in mind that Judge Newman herself stonewalled the committee and ignored deadlines before formally engaging with a former law clerk to represent her. Whether or not a person agreed with a judicial deadline, ignoring such a deadline in a legal matter can have perilous consequences. If anyone should understand that danger, it would be a judge. Objectively, Judge Newman ignoring the committee’s deadlines provides an inference of cognitive impairment — maybe that inference is incorrect but it is not an unreasonable inference.

    How new counsel should behave: (1) stop with the personal publicity; (2) stop with the personal attacks on judges; (3) stop with the false narratives; (4) privately approach the court with a reasonable request for how to accomplish the full medical examination; and (5) stop with the publicity of the entire case. The focus should be 100% on how to help the client — Judge Newman — not how to generate publicity.

    If, as you state, Judge Newman does not suffer from cognitive impairment, then with competent attorneys she may be able to end the suspension. Ideally for her, the matter could be cleared up in a matter of weeks.

  • [Avatar for Gene Quinn]
    Gene Quinn
    September 21, 2023 02:34 pm

    Well said, Judge Rader!

    We will all grow old– hopefully. It would be very nice indeed to have friends and colleagues recognize that declining physical ability and an aging voice does not mean someone is incompetent, or in need of a mandated evaluation.

    The precedent being set, as ugly as it is, will apply at some point to everyone on the Federal Circuit. We should all hope for better.