On June 20, 2023, the Special Committee of the Judicial Council of the Federal Circuit that is investigating a complaint identified against Judge Pauline Newman issued an Order denying Judge Newman’s request to make a July 13 hearing open to the public, but said it would consider publishing a redacted transcript of the hearing that protects witnesses’ identities. However, as of today, August 1, no transcript has been made available. In a Clause 8 interview published earlier today, Judge Newman’s counsel said he is under a secrecy order with respect to discussing the hearing but hinted that the process did not allow for a mutual exchange and was rather more akin to an oral argument. So, as difficult as it is to believe, perhaps the better question is “if” the Federal Circuit’s Special Committee will release a transcript at all—ever.
As we await a transcript of the July 13 hearing that took place in the Special Committee of the Judicial Council of the Federal Circuit’s investigation into Judge Pauline Newman’s alleged unfitness to remain on the court, Newman spoke with Bloomberg this week as a guest on its “On the Merits” podcast. She recounted for host David Schultz that she was told when confronted with the allegations, “Just go quietly or we’ll make your life miserable’; that was exactly the way it was presented to me.”
According to an Order filed today by Judge Christopher Cooper of the U.S. District Court for the District of Columbia, Retired Judge Thomas Griffith will informally mediate with the parties in the case brought by Judge Pauline Newman against the U.S. Court of Appeals for the Federal Circuit’s (CAFC’s) Special Committee that is investigating the question of her competence to continue serving on the court. Most recently, on Thursday, July 6, Judge Cooper, who was assigned the district court case brought in May by Newman against Moore, said he recognized that the dispute “is obviously of great sensitivity as well as importance to both the Federal Circuit bar and the public in the courts more generally” and called for the parties to enter into mediation.
Anyone reading this by now knows of the current situation with Judge Pauline Newman and the investigation initiated by Chief Judge Moore. As a former chief judge of the Court of Appeals for the Federal Circuit, I understand the challenges of overseeing smart, independent, and strong-willed judges, and I’ve gained a somewhat unique perspective on the ongoing saga, albeit as an outsider.
As the readers of this blog know, the Special Committee of the Judicial Council of the Federal Circuit is investigating a complaint identified against Federal Circuit Judge Pauline Newman. The Complaint alleges that Judge Newman “is unable to discharge all the duties of office by reason of mental or physical disability.” As a result, the Complaint essentially alleges, Judge Newman has authored too few majority (including unanimous per curiam) opinions compared to her colleagues, ignoring altogether the disproportionately larger number of her authored dissenting opinions. But the available evidence does not support the Complaint’s contention that Judge Newman’s performance has adversely changed in any statistically-significant way compared to that of her colleagues on the court.