97-year-old federal appeals judge should be suspended another year for exam refusal, panel says
Judiciary
97-year-old federal appeals judge should be suspended another year for exam refusal, panel says
July 25, 2024, 12:07 pm CDT
Judge Pauline Newman of the U.S. Court of Appeals for the Federal Circuit in May 2023. According to a three-judge special circuit committee, Newman, now age 97, should be suspended from case assignments for another year for failing to participate in a probe of her mental fitness. (Photo by Bill O’Leary/The Washington Post via Getty Images)
A 97-year-old judge on the U.S. Court of Appeals for the Federal Circuit should be suspended from case assignments for another year for failing to participate in a probe of her mental fitness, according to a three-judge special circuit committee.
Judge Pauline Newman refused to undergo required neurological exams, to provide medical records and even to sit for an interview, the committee said in its July 24 report and recommendation.
The refusal “constitutes a serious form of continuing misconduct,” according to the report.
Newman hasn’t presented information that would “undermine the voluminous record the committee compiled last year raising serious concerns” about Newman’s cognitive state, according to the special committee, which consists of Chief Judge Kimberly A. Moore and Judges Sharon Prost and Richard G. Taranto of the Federal Circuit.
Bloomberg Law, Law360 and Reuters have coverage, while How Appealing links to the report and recommendation.
The judicial council of the Federal Circuit suspended Newman for a year in September 2023. At that time, the council said its investigation “provided overwhelming evidence that Judge Newman may be experiencing significant mental problems, including memory loss, lack of comprehension, confusion and an inability to perform basic tasks.” As she struggled with those tasks, “she became frustrated, agitated, belligerent and hostile towards court staff,” the order said.
The judicial council will now consider the special committee’s July 24 recommendation for a continued suspension.
Newman has challenged the law that created circuit judicial councils, which can take action on complaints regarding judges’ physical and mental disabilities, and the Judicial Conduct and Disability Act, which governs the procedure in such cases. A federal judge rejected her claims in two decisions this year. The decisions are being appealed.
Newman is represented by the New Civil Liberties Alliance, which has cited “clear evidence” that she is competent to serve as an appeals judge.
Newman’s lawyers pointed to her December 2022 dissent in a case that the U.S. Supreme Court found persuasive in an April 2024 decision. The Supreme Court adopted not only the outcome favored by Newman but also her reasoning, Newman’s lawyers said in a June 28 response to a committee order to show cause.
“Rather than cast aspersions on Judge Newman’s abilities, this committee and Judge Newman’s other colleagues should look to and learn from her exemplary judicial craftsmanship,” the response said.
As further evidence of fitness, the response said, Newman has participated in several public events, including as a keynote presenter at an intellectual property institute hosted by the ABA Section of Intellectual Property Law.
“These examples show that Judge Newman is fully in control of her faculties, is able to engage with complicated issues, and can think on the spot, much like a federal judge would be expected to do at oral argument and during case discussion,” the response said.
Newman has also been interviewed by journalists, including Above the Law founder David Lat, who concluded that Newman was “completely lucid and sane,” causing him to question the negative reports.
The special committee acknowledged a “handful of occasions” in which Newman delivered public remarks or sat for a media interview but said “none of this undermines the basis for the medical examination orders.”
The basis consisted of “strong concerns” raised by “troubling signs of cognitive decline, often resulting in angry and abusive behavior towards staff, with many witnesses describing increasingly erratic behavior in 2023,” the report said.
“Judge Newman’s apparent inability to understand that her conduct was inappropriate further underscores the need for mental fitness examinations,” the report said.
One of Newman’s lawyers, Gregory Dolin, told Reuters that Newman’s suspension is “unlawful,” and it will continue to be challenged. He told Law360 that if Newman’s refusal to undergo medical tests deserved punishment, it should be punished only once.
He also told Law360 that the only constitutional way to remove Newman is by impeachment.
“They could have referred the judge a year ago, but I think the committee would be laughed at out of Congress for doing so,” he said.
See also:
Investigations of federal judges are rare and should happen more, former clerk says
Federal appeals judge, 96, fails to overturn suspension order for refusing to cooperate in fitness probe
Speaking at ABA meeting, federal appeals judge, 96, doesn’t address her suspension but mentions opinion pace
