‘A Terrible Precedent to Set’: Newman Suspension Upheld on Appeal

The Judicial Conference of the United States’ Committee on Judicial Conduct (Conference) and Disability issued its decision today in Judge Pauline Newman’s appeal of the Judicial Council of the U.S. Court of Appeals’ (Council) September 2023 decision to suspend her from all cases.

Federal Circuit Chief Judge Kimberly Moore first identified a complaint against Newman in April 2023. IPWatchdog was the first to break the news, and the court soon published a statement responding to media reports and making previously sealed documents public.

The Council’s September decision made official the July 31 recommendation of the Federal Circuit’s Special Committee that Newman be suspended from taking on case assignments for one year, “or at least until she ceases her misconduct and cooperates such that the Committee can complete its investigation.” It barred Newman from hearing any cases at the panel or en banc level and discredited the two independent medical reports Newman has undergone in lieu of submitting to the court’s preferred exams, calling them “not remotely an adequate substitute for the thorough medical examinations ordered by the Committee.”

Today’s Conference decision denied Newman’s petition for review of the Council’s decision, holding that the Council did not abuse its discretion in refusing to transfer the proceedings to a different circuit, that Newman has not shown good cause for her failure to cooperate, and that the sanction did not exceed the Judicial Council’s authority.

Regarding transfer, the Conference reasoned that “[t]he Special Committee made clear that, in light of Judge Newman’s refusal to undergo a medical evaluation, provide relevant medical records, and participate in an interview with the Special Committee, the Special Committee, and subsequently, the Judicial Council, was considering only the narrow question of whether the failure to cooperate constituted misconduct.” Consideration of this “narrow question” did not require the members of the Council to serve as witnesses and thus “Judge Newman’s argument that members of the Judicial Council were required to recuse themselves is unavailing,” wrote the Conference.

The Special Committee narrowed the focus of its investigation to whether Newman’s refusal to undergo medical examination and to provide medical records constitutes misconduct in separate orders issued June 1 and June 5.

Today’s decision also said Newman had not presented evidence of actual bias and agreed with the Council’s explanation of why transfer is not warranted at this stage. Among these reasons is that staff have “ready access” to the Committee and more personal knowledge of Judge Newman and the relevant circumstances. The decision continued:

“Rule 26 permits, but does not require, a chief circuit judge or judicial council to request, in ‘exceptional circumstances,’ that the Chief Justice transfer a matter to another circuit. The Chief Circuit Judge and the Judicial Council exercised their discretion and made a reasoned determination as to the absence of ‘exceptional circumstances’ to justify a transfer request at this stage of the proceedings.”

The decision also noted that the Council has indicated Newman’s transfer request can be renewed if she “chooses to cooperate with the Special Committee’s investigation.”

In explaining its finding that Newman did not show good cause for her refusal to cooperate, the Conference’s decision said that Judge Newman was not denied due process and that she “was afforded all the process she was due under the Rules.” It also said the Council had “voluminous evidence” warranting that Newman undergo a medical evaluation and that she “was given numerous opportunities to contest the basis upon which the Special Committee determined that a medical evaluation was necessary” but chose not to challenge it. “Based on the facts before us, we conclude that the evidence that Judge Newman may suffer from a disability that prevents her from discharging the duties of office is sufficient to justify the reasonable requirement that she undergo a medical examination,” said today’s decision.

The decision also said that the Conference’s precedent has found, as the Judicial Council noted in its September Order, that “it is settled precedent that a subject judge may not circumvent the investigation process by submitting tests of her own choosing in lieu of those ordered by the Committee.”

Finally, the decision rejected Newman’s counsel’s argument that the sanction of a one year suspension, subject to renewal if Newman continues to refuse to cooperate, amounts to an “ad infinitum” sanction, which is in violation of  Rule 20 of the Rules for Judicial-Conduct and Judicial-Disability Proceedings. Newman’s counsel, Greg Dolin of the New Civil Liberties Alliance (NCLA), told IPWatchdog in September that he believes the order is flatly illegal, citing to Rule 20, which requires a “fixed period” for suspending a judge from being assigned new cases. According to Dolin, the order calls for a floating period of one year that is renewable depending on whether Newman chooses to submit to the Council’s preferred medical examinations. Dolin also said the action taken was not remedial, as required by the rules, but “coercive.”

But the Conference’s decision today said that “although the sanction is subject to renewal, unlike other suspensions, Judge Newman has the power to trigger reconsideration or modification if she decides to cooperate.”

According to a statement released by the NCLA today, “Judge Newman’s indefinite suspension is unprecedented in American judicial history, exceeding sanctions imposed on judges who committed serious misconduct and improprieties.”

Dolin also noted that, while they were disappointed with the decision, it “confirmed, contrary to the Judicial Council’s district court briefs, that the Judicial Council was acting in an administrative rather than judicial capacity. This fact indicates its actions are subject to the same review as actions of any other agency. Judge Newman intends to fully press for such review in properly constituted Article III courts.”

Judge Newman herself commented:

“Nothing has changed since last February – I continue to be fully able to perform the duties of the office which was entrusted to me. This has been confirmed by two physicians and numerous individuals who have interacted with me over the last twelve months. This battle is not just for me, but for the very concept of judicial independence and protection of our constitutional structure. I will continue to fight it.”

IPWatchdog Founder and CEO Gene Quinn said that, while it was expected that the decision would side with Chief Judge Moore, it still “creates a terrible and scary precedent.” He continued:

“Indeed, one has to wonder whether the decision of a committee made up almost exclusively of federal judges having already taken senior status and working only part-time is reflective of the way the entire, full-time federal judiciary would view this issue.

As a result of Chief Judge Moore’s actions, and ratification by this senior panel, it is now perfectly legitimate to question the mental competence of a federal judge and demand the judge submit to a mental examination—even without any credible evidence of cognitive decline. Even the Federal Circuit themselves have abandoned the egregious myth that Judge Newman is suffering from some mental decline, instead pursuing this matter only because she did not comply with Chief Judge Moore’s order. And, by now it is uncontroverted that the original complaint by Chief Judge Moore contains wild factual inaccuracies. So, the decision to impeach her with an indefinite suspension is not only scary, but it clearly violates the U.S. Constitution.

This is a terrible precedent to set. Federal Judges on both sides of the political spectrum should be afraid. It is perfectly within the province of any federal court to demand any judge submit to a mental evaluation, and if you don’t you will be indefinitely suspended. The potential for abuse is as extraordinary as it is obvious.

Is it now also fair game for practitioners and litigants to question the mental fitness of the judges assigned to their cases? It will be impossible to argue with any intellectual integrity that it is inappropriate for practitioners and litigants to question the mental fitness of members of the federal judiciary. This opens a pandora’s box of truly horrible consequences.”

This article was updated on February 7 to include the NCLA and Judge Newman’s statements.