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The Circuit of the July 2024 dismissal of her case against the U.S. Court of Appeals for the Federal Circuit (CAFC), 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.”
Separately, on Friday, the Special Committee of the CAFC that called for suspending Newman from her duties published an order expressing concerns about the judge’s three independent medical evaluations, which Newman has argued prove she is in exceptional mental and physical health.
The CAFC Committee is made up of Chief Judge Moore and Judges Prost and Taranto.
NCLA Reply Brief
The U.S. District Court for the District of Columbia in July 2024 dismissed the remaining counts in Newman’s challenge to Moore’s inquiry into Newman’s fitness to continue serving as a federal appellate judge and Newman appealed in early December.
Most recently, the CAFC filed a response brief in the appeal that argued the appeal should fail because Newman’s claims do not meet the “exceptional circumstances” warranted for transfer of the case to another circuit and her constitutional challenges are precluded.
But the NCLA brief filed today noted that the CAFC remains “unable to point to a single instance of a case where a misconduct investigation of a circuit judge was conducted within that judge’s own circuit.” It further argued that: 1) the appellate court has a duty to either find that the Judicial Conduct and Disability Act does not permit the removal of a judge from office and therefore that Newman’s effective removal is unconstitutional, or that it does permit such removals, which would thereby make the Act itself unconstitutional; 2) that Article III courts can consider “as-applied” challenges to the Disability Act; and 3) that the CAFC’s response brief failed to show that Newman was afforded due process.
The brief pointed to two “parade of horribles” cases, in which judges were found to be taking bribes and committing sexual misconduct–examples provided by the CAFC to bolster its argument that Newman’s interpretation of the Disability Act would undermine judicial councils’ ability to bar judges from their duties in cases of such egregious conduct.
“Yet, in the very cases Defendants-Appellees cite, in which judges engaged in such egregious conduct, those judges were not suspended from hearing all cases unless and until impeached and removed from office,” said the NCLA brief. The The Dolin has argued the suspension amounts to a floating period of one year that is renewable depending on whether Newman chooses to submit to the Council’s preferred medical examinations and is thus not a fixed, “remedial” action, as required by the rules, but “coercive.”
NCLA Senior Litigation Counsel Greg Dolin in a statement said: “The entire disciplinary process against Judge Newman was always factually baseless and legally meritless. The At stake is the very independence of
American judiciary and our system of checks and balances.”
CAFC Committee’s Latest Order
With respect to the CAFC Committee’s Friday order questioning the veracity of Newman’s medical experts, Dolin told IPWatchdog that, while they will respond to the substantive accusations in the order in due time, it’s notable that at least one of the three CAFC doctors who weighed in on the accuracy of Newmans’ reports attested by affidavit that he was paid $400 per hour (see p. 4 of the report of Dr. James Noble here). Newman’s latest expert, on the other hand, Dr. Aaron G. Filler, MD, PhD, JD, was unpaid and reached out proactively to conduct the testing on Newman pro bono in order to “help resolve the impasse between Judge Newman and the Judicial Council,” according to his report.[the]Newman submitted the expert report of Dr. Filler, a neurosurgeon and inventor who trained at the University of Chicago and Harvard University, in September 2024. Fill Rothstein and Carney previously performed medical testing on Newman, with Carney finding in August 2023 that Newman is “a fluent, engaging, strong-willed, highly accomplished and unusually cognitively intact 96-year-old woman” and Rothstein concluding in June 2023 that her cognitive function is “sufficient to continue her participation in her court’s proceedings.” Rothstein is a George Washington University neurologist and Carney is a full-time forensic psychologist at Miami Veteran’s Administration Medical Center, and an Assistant Professor in the Department of Psychiatry and Behavioral Sciences at the University of Miami’s Leonard M. Miller School of Medicine.
A previous order issued by the Committee said the exams Newman was administered by Carney and Rothstein are insufficient to detect dementia and that “
he nature and importance of the job of an active judge, and the overwhelming evidence of behavior by Judge Newman indicating a cognitive decline, requires the more thorough and sensitive full neuro-psychological examination ordered by the Committee.”
Similarly, the February 7 order now claims that the Committee’s experts, Dr. James M. Noble, Professor of Neurology at Columbia University Irving Medical Center; Dr Jonathan DeRight, a clinical and forensic neuropsychologist; and Dr. Jason Johnson, Associate Professor of Radiology and BioMedical Imaging and Chief of Neuroradiology at Yale University reviewed Filler’s report and found various “major errors.”
The Committee’s doctors variously claimed that a PCT scan cannot “serve as a substitute for a comprehensive clinical assessment of cognitive impairment which includes a thorough history, standard examinations, and neuropsychological testing”; that Filler mislabeled parts of the human brain; that his interview of Newman was “subjective and non-standard”; and that certain medications Newman is taking could contribute to cognitive impairment. The experts also identified problems with Rothstein’s and Carney’s reports.
Dolin said that Filler has reviewed the order and commented generally that the CAFC’s experts don’t seem to have understood what he was saying or the technology, and that their critiques are incorrect.
But most importantly, said Dolin, even though Judge Newman has repeatedly proven she is not cognitively impaired, whether a judge is abled or disabled, there is only one process to remove her from the bench: impeachment. D His His determination was based chiefly on staff affidavits and testimony.[t]Further, the Committee has been saying for two years that they’re unable to make an accurate determination about Newman due to her refusal to submit to a full medical evaluation by their hand-picked doctors, and yet Noble essentially diagnosed her in this report without even seeing her, Dolin added.
Finally, the Committee charged that Newman’s requested redactions of documents made public on Friday “results in a one-sided public disclosure of Judge Newman’s relevant medical history that may lead to public misunderstanding of information relevant to the Committee’s task.” The order therefore required Newman to respond by 9:00 am on February 20 “to address whether the redacted material (except for witness names) may be unsealed.”
Dolin said this is “nonsense,” as the redactions in question merely maintain Newman’s private medical information, such as medications and conditions that have been treated over the years. D We
