Judge Newman’s Suspension by the CAFC Has Marred Public Faith in the Federal Judiciary

At the core of Due Process and basic justice is the undeniable right to be heard by an impartial adjudicator on the charges brought against you. That includes the right to present witnesses and evidence in your defense and to cross-examine the witnesses against you. Neither has been afforded to Judge Pauline Newman.

Instead, allegations by the U.S. Court of Appeals for the Federal Circuit (CAFC) chief judge, and certain staffers who report to the chief judge, are assumed to be both accurate and sufficient. Yet, Judge Newman has directly and publicly denied their accuracy and sufficiency.

Disputed Allegations

Solely on the basis of those untested factual allegations, for almost two years Judge Newman has been barred from hearing cases, the central duty of a judge. Why? Not for proven mental disability but solely for declining to undergo three forensic neurological evaluations by experts selected by the chief judge and the court. But the factual allegations that form the basis of ordering such tests are the very allegations Judge Newman disputes. They allege, for example, that she had a heart attack, had stents implanted, and fainted in the courthouse. Newman says all three allegations are completely false. One staffer says she failed a computer security test 20 times; she says she never took the test.

Later, Judge Newman submitted to extensive evaluations by three renowned neurological experts—two of her  own selection and one who independently reached out to offer his services. Although they found her entirely fit both mentally and physically to ably perform the duties of an appellate judge, their reports were essentially ignored or discounted. Over the last two years, members of the bar have heard her speak repeatedly and lucidly at public events. No one has asked them for their opinion. Reporters who interviewed her in depth came away expressing the sense she is fine. They, too, have not been asked.

As far as I can see from what the court has publicly disclosed, no judge on the court or advocate before the court has complained about her mental fitness. Only some staff members who report to the chief judge have criticized her. Nor, to my knowledge, has any patent scholar. On the contrary, many professors have praised her opinions for many years. So have Supreme Court justices. Such approvals continued during the last few years as well. Indeed, just this year and last, she has been the recipient of many awards and much adulation by the bar. And just a few months ago the Supreme Court reversed an en banc Federal Circuit decision in a veterans’ case in which Judge Newman dissented.

Because the chief judge (the chief accuser) made clear she wanted Newman off the court, the staff witnesses could plausibly have felt under pressure to misstate or exaggerate in the affidavits the chief judge asked them to file. The risk of “Command Influence” is a phenomenon not limited to the military. Without cross-examination of these staff employees, how can anyone know the reliability and candor of their affidavits? Moreover, how are non-judge staff members competent to assess a judge’s competence to decide cases?

The Appearance of Bias is Bad for Everyone

Normally, one would assume the chief judge’s motivations are proper: simply to protect the court and litigants before it. But the mere appearance of bias is regarded as being just as harmful to justice as actual bias. Given Judge Newman’s accounts of their interactions, at least the appearance of bias against her by the chief judge is hard to dismiss.

Neither Judge Newman nor the chief judge has been cross-examined before a neutral arbiter. To be sure, the public needs to be protected from incapable judges, whatever their age, and there is a Judicial Conduct and Disability Act that establishes procedures for determining disability, including provision for a transfer to a neutral tribunal. But absent a search for truth in a trial-like proceeding, how can one determine either the chief’s motivations or Judge Newman’s competence?

Surely, Judge Newman’s advanced age at 97 cannot alone be the test. Modern science has established that some persons are “super-agers” who retain mental acuity until death. Others of course may start losing it as early as in their sixties or seventies.

Given the chief judge’s apparent animus against Judge Newman, how can she herself be regarded as an impartial adjudicator? Even the impartiality of the other judges may be questioned if, like the staff, they were perhaps fearful of adverse consequences if they failed to support the wishes of the chief judge.

No one, I suggest, can confidently untangle these diametrically opposing versions of the truth without a trial-like proceeding. And, so far, that has been repeatedly denied by all the external authorities who have looked at this case.

Finally, all should be able to agree that the disputed facts should be decided by a neutral body. Such neutrality must be beyond question for the sake of faith in the courts by litigants and the public alike. That, after all, is the basis of judicial recusals. Yet requests by Judge Newman to transfer the case to another circuit have all been rejected. That alone is troubling.

Both the district court and the Judicial Conference committee on disability have made clear that although addressing certain other issues, they did not address the merits of the alleged physical and mental disability. No outside body has yet done so even though this case has now been under investigation and court action for over two years.

The CAFC’s Credibility is at Stake

Federal judges are removable by impeachment and conviction by Congress or by proper application of the judicial disability act when disability is proven. In this case, however, the effective removal is not based on proven disability, but only Judge Newman’s refusal to be tested by experts selected, directly or indirectly, by the chief judge and the court.

If there is a solid basis for requiring such tests by those experts, Newman’s refusal may constitute “serious misconduct”, as charged. But what if there is no credible basis for the demand? How then is ongoing punishment for her refusal to comply justified?

Getting the facts straight always lies at the heart of doing justice. In this case, however, the relevant facts have yet to be established and verified. In its brief filed in the district court, the Federal Circuit wrote that all the disability charges were “moot”, removing these charges from the district court. Yet, Judge Newman was not returned to judicial service, and she has now been “suspended” for a second year, on the same charge of “failure to cooperate.”

Judges from around the country anxiously ask me regarding the actions taken against Judge Newman: “What’s going on with the Federal Circuit?” Is it not time for some outside authority to intervene and to end this impasse before it further undermines the credibility of the Federal Circuit, and potentially the entire judiciary?

Image Source: Deposit Photos
Author: stuartmiles
Image ID: 8052080