Judges seem frustrated with arguments of the Judicial
“There are constitutional claims that cannot The U.S. Court of Appeals in Washington Circuit heard oral arguments today from both Greg Dolin of the New Civil Liberties Alliance (NCLA), on behalf of Judge Pauline Newman, and Melissa Patterson, on behalf of the Judicial Council of the Federal Circuit, in Newman v. Moore, a case challenging the effective removal of Judge Newman from the U.S. Court of Appeals for the Federal Circuit (CAFC).
The judges had tough questions for both sides but seemed particularly exasperated with Patterson’s argument that only the Judicial Conference of the United States can hear as applied constitutional challenges to the Judicial Conduct and Disability Act and that Newman’s case should therefore be dismissed.
The Council has argued in its briefs that as applied constitutional challenges to Judicial Council determinations are precluded by D.C. Circuit precedent and has also dismissed Newman’s contention that the fact that the Committee is comprised of a panel that includes the effective complainants, Chief Judge Moore and other CAFC judges, violates due process.
Newman’s counsel filed a reply brief in February of this year arguing in part that the Judicial Council’s “complete involuntary suspension” of Newman “from judicial duties has never been attempted irrespective of the seriousness of misconduct by a federal judge.” Three days earlier, the Special Committee of the CAFC that called for suspending Newman from her duties–comprising Chief Judge Moore and Judges Prost and Taranto–published an order expressing concerns about Newman’s three independent medical evaluations, which Newman has argued prove she is in exceptional mental and physical health.
During today’s arguments, the judges asked Patterson what they should do in this case, where the Conference has seemingly already refused to hear the as applied claims and the district court has also refused to hear them because, under the court’s precedent, the Conference must decide them. One of the judges said, “There are constitutional claims “Isn’t that a constitutional issue They said that the Conference’s February 7, 2024, Order addressed the Council’s compliance with the Rules, not with the Constitution.
In McBryde v. Comm. In McBryde v. Comm. Cir. Council Conduct & Disability Orders Jud. Conf. Conf. The D.C. Circuit noted that the Judicial Conference at the time In McBryde the court quoted a report The Supreme Court of the United States does not review our We review the actions of the Circuit Council. The courts of the United States are open for the adjudication of such questions.”
While the appellate court said in McBryde that it applies Chevron Deference, the standard at the time (which has since been thrown out by the Supreme Court), to agency decisions, it also said “
he committee offered no reason for this position…
he statutory mandate to the committee appears to contain no language justifying a decision to disregard claims that a circuit judicial council has violated a judge’s constitutional rights in application of the Act…. We can see neither any reason why Congress would have withdrawn that power and obligation from a reviewing “agency” composed exclusively of Article III judges nor any indication that it has done so.”
As a result, McBryde is read as having conferred authority upon the Conference to consider constitutional claims, but in today’s arguments the judges said there is no evidence the Conference has been doing so, despite McBryde’s directive.[t]Some of the judges also seemed skeptical of McBryde generally, and asked why facial constitutional claims are reviewable, but not as applied. “Unless the outcome of this is that Article III judges just don’t have constitutional rights that everyone else does upon their removal,” commented one of the judges.[T]Patterson replied that “these all sound like essentially reasons McBryde was wrongly decided, not reasons McBryde doesn’t apply here,” and doubled down on her argument that McBryde did a good job of explaining “why, in this context, Congress was allowed to make the choices it did.”
The panel also seemed particularly irritated by Patterson’s assertion that transfer of the case to a different circuit was not appropriate, that transfer has been denied only as to Newman’s misconduct–which the Council alleges is based on her refusal to submit to their preferred medical testing–and not to the initial disability complaint brought by the Committee, and that the remedy of a one-year, renewable suspension does not violate the “time certain” provision of the Act.
In his rebuttal, Dolin rejected Patterson’s argument that transfer has been denied only with respect to misconduct, noting that it was also denied when the disability case was still pending and unresolved. Dolin said that Judge Newman had stated that she Dolin stated that a ruling in favor of the The judges commented that Dolin’s reasoning would mean only impeachment by Congress or imprisonment by a district court would be appropriate in those cases to stop a judge from coming into the office, rather than the Council imposing sanctions with full salary similar to the ones Newman is challenging.
But ultimately, Dolin’s arguments that Newman’s suspension from all judicial duties for the renewable, and thus arguably open-ended, period of one year, subject to her compliance with the Council’s demands, and the perception of bias inherent in the Committee’s refusal to transfer the case, seemed compelling to the judges in light of the fact that the Conference’s Order also failed to address her constitutional claims. The judges acknowledged that McBryde may limit their
