The suspension of Judge Newman by the CAFC has damaged public confidence in the federal judiciary

“To be sure, it is important to protect the public from incompetent judges, regardless of their age …. But absent a search for truth in a trial-like proceeding, how can one determine either the chief’s motivations or Judge Newman’s competence?”

At the core of Due Process and basic justice is the undeniable right to be heard by an impartial adjudicator on the charges brought against you. This includes the right to present evidence and witnesses in your defense, and to cross-examine witnesses against you. Neither has been afforded to Judge Pauline Newman.Instead, allegations by the U.S. Court of Appeals for the Federal Circuit (CAFC) chief judge, and certain staffers who report to the chief judge, are assumed to be both accurate and sufficient. Yet, Judge Newman has directly and publicly denied their accuracy and sufficiency.

Disputed Allegations

Solely on the basis of those untested factual allegations, for almost two years Judge Newman has been barred from hearing cases, the central duty of a judge. Why? Why? Judge Newman, however, disputes the allegations that were used to order the tests. They claim, for example that she suffered a heartattack, had stents inserted, and fainted at the courthouse. Newman claims that all three allegations are false. She says she never took it. One staffer claims she failed the computer security test twenty times. They found her to be physically and mentally fit to perform the duties of a appellate judge. However, their reports were largely ignored or discounted. In the last two-year period, members of her bar heard her speak at numerous public events. She was lucid and articulate. No one asked for their opinion. Reporters who spoke to her in detail came away with the impression that she was fine. No one has asked them.

As I can tell from the information that the court has made public, neither a judge nor an advocate has complained about her mental health. Only a few staff members who report directly to the chief judges have criticised her. I am not aware of any patent scholar who has criticised her. Many professors have praised the opinions of her for many years. Supreme Court justices have also praised her opinions. These approvals have continued over the past few years. She has received many awards this year and last and is highly regarded by the bar. And just a few months ago the Supreme Court reversed an en banc Federal Circuit decision in a veterans’ case in which Judge Newman dissented.

Because the chief judge (the chief accuser) made clear she wanted Newman off the court, the staff witnesses could plausibly have felt under pressure to misstate or exaggerate in the affidavits the chief judge asked them to file. The “Command Influence’ phenomenon is not limited to the military. How can anyone determine the truthfulness and reliability of these affidavits without cross-examining staff members? Moreover, how are non-judge staff members competent to assess a judge’s competence to decide cases?

The Appearance of Bias is Bad for Everyone

Normally, one would assume the chief judge’s motivations are proper: simply to protect the court and litigants before it. The mere appearance of bias can be just as damaging to justice as actual prejudice. Given Judge Newman’s accounts of their interactions, at least the appearance of bias against her by the chief judge is hard to dismiss.

Neither Judge Newman nor the chief judge has been cross-examined before a neutral arbiter. The public must be protected from incompetent judges, regardless of their age. A Judicial Conduct and Disability Act establishes procedures to determine disability, which includes a provision for a transfer. But absent a search for truth in a trial-like proceeding, how can one determine either the chief’s motivations or Judge Newman’s competence?

Surely, Judge Newman’s advanced age at 97 cannot alone be the test. Modern science has proven that some people are “super-agers,” who retain mental acuity even after death. Others of course may start losing it as early as in their sixties or seventies.

Given the chief judge’s apparent animus against Judge Newman, how can she herself be regarded as an impartial adjudicator? The impartiality of other judges could be questioned, if, as with the staff, they feared adverse consequences if the chief judge’s wishes were not followed. And, so far, that has been repeatedly denied by all the external authorities who have looked at this case.

Finally, all should be able to agree that the disputed facts should be decided by a neutral body. For the sake of the public’s faith in the courts, and for litigants to have confidence in them, this neutrality must not be questioned. This is the basis for judicial recusals. Judge Newman’s requests to transfer the case to a different circuit have been all rejected. That alone is troubling.

Both the district court and the Judicial Conference committee on disability have made clear that although addressing certain other issues, they did not address the merits of the alleged physical and mental disability. The CAFC’s credibility is at stake

Federal Judges can be removed by impeachment, conviction by Congress, or by applying the judicial disabilities act. In this case however, the removal is not based upon a proven disability but rather Judge Newman refusing to be tested by experts chosen by the chief judge or the court. What if the demand is not credible? How then is ongoing punishment for her refusal to comply justified?

Getting the facts straight always lies at the heart of doing justice. In this case, the relevant facts are still to be established and confirmed. Judge Newman was not returned to judicial service, and she has now been “suspended” for a second year on the same charge of “failure to cooperate.” Yet, Judge Newman was not returned to judicial service, and she has now been “suspended” for a second year, on the same charge of “failure to cooperate.”

Judges from around the country anxiously ask me regarding the actions taken against Judge Newman: “What’s going on with the Federal Circuit?” Is it not time for some outside authority to intervene and to end this impasse before it further undermines the credibility of the Federal Circuit, and potentially the entire judiciary?

Image Source: Deposit Photos

Author: stuartmiles

Image ID: 8052080

Story originally seen here