Mainstream Media Attention for Judge Newman Suspension Grows as Saga Continues

On Sunday, March 29, National Public Radio’s (NPR) popular news broadcast All Things Considered featured a segment on Federal Circuit Judge Pauline Newman’s efforts to challenge her current suspension based upon Chief Judge Kimberly Moore’s allegations that Judge Newman is mentally unfit to continue serving on the Federal Circuit. The news segment follows a week of developments, including a ruling by the Judicial Conference of the United States’ (JCUS) Committee on Judicial Conduct and Disability dismissing Judge Newman’s statutory and constitutional challenges to the Federal Circuit’s renewed suspension of new case assignments.

The JCUS Judicial Conduct Committee’s ruling on March 24 affirmed the Federal Circuit Judicial Council’s renewal of Judge Newman’s suspension issued last August. Judge Newman filed a petition with the Judicial Conduct Committee last October challenging the renewal of her suspension for failure to comply with the Federal Circuit Special Committee’s investigation of Chief Judge Moore’s allegations, specifically Judge Newman’s refusal to undergo medical examinations ordered by the Judicial Council. Judge Newman has submitted evaluations from three independent doctors who, like many who know Judge Newman personally, have concluded that she is “unusually cognitively intact.”

JCUS Committee: Where Resolution Is Possible, Suspension Remains “Temporary”

Judge Newman argued in her petition that the Judicial Council’s suspension violates the Judicial Conduct and Disability (JC&D) Act of 1980, codified at 28 U.S.C. § 354(a)(2)(A)(i) to provide that a judicial council may suspend the assignment of new cases to a judge “on a temporary basis for a time certain.” Judge Newman argued that her suspension was effectively permanent unless she agrees to the Judicial Council’s medical examinations, and that judicial councils have previously interpreted the statutory term “temporary” to mean a year at most.

The JCUS Committee, however, cited a pair of two-year suspensions handed out to former U.S. District Judge Thomas Porteous, Jr., as evidence of suspensions under the JC&D Act lasting longer than one year. Renewing the suspension at one year ensures that the suspension’s appropriateness is regularly reviewed by the Federal Circuit Judicial Council. The Judicial Council renewed Judge Newman’s suspension after extensive consideration of new expert reports and other evidence, leading to the possibility that Judge Newman’s suspension would be resolved. “And where the prospect for resolution is a real option, a renewed suspension remains ‘temporary,’” the JCUS Committee ruled.

Judge Newman also challenged her suspension as usurping Congress’s exclusive control over removal, arguing that the Judicial Council is required to refer her for impeachment due to the unprecedented nature of her three-year suspension. While Section 354(b)(2)(A) requires such referral for judges engaging in conduct constituting grounds for impeachment under Article II of the U.S. Constitution, the JCUS Committee found that a judicial council has never referred a judge for impeachment due to failure to cooperate with an investigation into whether the judge has a disability.

The JCUS Committee also nixed Judge Newman’s constitutional challenges to her suspension for constructively removing her from her judicial office without the process of impeachment, which Judge Newman argued was the only path for such removal given Article III’s constitutional guarantee that judges “shall hold their Offices during good Behavior.” Here, the Judicial Conduct Committee concluded that judicial power under Article III is held by the courts, not individual judges. Further, while removal results in the permanent loss of a judge’s ability to decide cases and controversies, administrative decisions to remove a caseload due to illness do not have the same result.

BADC: Great Support for Judge Newman Among Federal Circuit Practitioners

Finally, Judge Newman’s Fifth Amendment Due Process challenge to the Judicial Council’s denial of her request to transfer her case to another circuit also failed. In supplemental briefing on the issue ordered by the JCUS Committee, Judge Newman argued both her property interest in exercising the United States’ judicial power, and her liberty interest in protecting medical records and avoiding compelled medical examinations.

Judge Newman’s alleged property interest in exercising judicial power cannot come from the U.S. Constitution according to the JCUS Committee, citing the U.S. Supreme Court’s 1972 ruling in Board of Regents of State Colleges v. Roth for that premise. Under the Code of Conduct for U.S. Judges, judges should hear matters assigned unless disqualified, and the JCUS Committee noted that Judge Newman was able to complete her work on cases assigned prior to her suspension.

Assuming without deciding that Judge Newman alleged a protected liberty interest, the JCUS Committee found no denial of procedural due process in denying Judge Newman’s transfer request. Unlike Supreme Court decisions in Gibson v. Berryhill (1973) and In re Murchison (1955), where the appearance of bias in adjudicators has violated due process, the process under the JC&D act is administrative procedure with adjudicators enjoying the presumption of honesty and integrity under the Court’s ruling in Withrow v. Larkin (1975).

The JCUS Committee acknowledged that due process concerns could arise if the Federal Circuit Judicial Council reaches the ultimate issue of Judge Newman’s disability status. At that time, such concerns could favor a transfer if Judge Newman planned to call on members of the Judicial Council to testify. However, on the narrower question of Judge Newman’s cooperation with the Special Committee’s investigation, no such due process violation exists. The JCUS Committee concluded by noting their expectation that Judge Newman would uphold her promise to submit to medical examination upon the case’s transfer.

Two days after this ruling, the Bar Association for the District of Columbia (BADC) filed an amicus brief supporting Judge Newman’s petition for cert currently before the U.S. Supreme Court. Writing on behalf of many within the BADC community “who are publicly silent but deeply concerned,” the BADC categorized Judge Newman’s suspension as an impeachment requiring Congressional action that “deprives our legal community of an experienced and fiercely independent voice in the ongoing weaving of the tapestry of case law at the Federal Circuit.” Citing Dr. Seuss’ The Lorax, the BADC further wrote to apprise the Court of support for Judge Newman among Federal Circuit practitioners who remain silent for fear that criticism could impact their appeals before that court.