The Volokh Conspiracy
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Is Judge Newman Entitled to Her Day in Court to Challenge Her "Stealth Impeachment"?
Other former judges and I have just filed an amicus brief in the D.C. Circuit, making the case that the federal courts should consider Judge Newman's challenge to being effectively removed from her position on the Federal Circuit in violation of her constitutional rights.
My co-blogger, Josh Blackman, has previously written an excellent post about what might be viewed as the "stealth impeachment" of Judge Newman in the Federal Circuit. Judge Newman has been suspended due to her alleged failure to "cooperate" with a Special Committee appointed by the Chief Judge of the Federal Circuit, which was investigating Judge Newman's capacity to perform her work. Judge Newman has sought federal judicial review of whether this lengthy suspension violates her constitutional rights. But, thus far, she has been denied any judicial review.
Yesterday, I joined former judges Susan Braden, Janice Rogers Brown, Randall Rader, and Thomas Vanaskie in an amicus brief (written by experienced appellate lawyer Richard Samp) urging the D.C. Circuit to direct that Judge Newman's claims be reviewed on their merits. Here's the opening of our brief explaining why Judge Newman is entitled to her day in court:
Judge Pauline Newman has served with distinction on the United States Court of Appeals for the Federal Circuit since its creation in 1984. Her many dissents may on occasion irritate some of her judicial colleagues, but those opinions have routinely been vindicated by the U.S. Supreme Court—including as recently as this year. Doctors who have examined her recently have all concluded that she remains cognitively sharp, an opinion shared by many who have witnessed her recent public appearances. There has been no finding that Judge Newman is disabled or otherwise incapable of performing her judicial duties.
Judge Newman has nonetheless been effectively removed from office by Appellees [e.g., the Chief Judge of the Federal Circuit et al.]. In response to her decision to decline a medical examination by doctors of their choice, Appellees suspended her from all judicial activities—including hearing cases, writing opinions, and voting on petitions to hear cases en banc. The original order imposed a one-year suspension, but Appellees later renewed the suspension for another year and made clear that the suspension would continue indefinitely until Judge Newman acquiesced to their examination demand. She responded by filing suit in district court, alleging that she has been removed from office in violation of her constitutional rights. But rather than addressing the merits of those constitutional issues, the district court largely dismissed Judge Newman's claims on the ground that judicial review was precluded.
That holding cuts against the strong presumption that litigants are entitled to have their federal constitutional claims heard in a federal court. The presumption can be overcome only by clear and convincing evidence that Congress meant to foreclose review, and there is no such evidence in this case. Judge Newman is entitled to her day in court.
Moreover, the facts alleged by Judge Newman state a valid claim. The Constitution assigns to the U.S. Senate alone the power to remove Article III judges from office. By suspending Judge Newman for an indefinite period and thereby effectively removing her from office, Appellees are usurping that power. That usurpation represents a serious challenge to the independence of federal judges that the Framers sought to preserve.
For Judge Newman to be removed from judicial service for an indefinite period of time violates clearly established separation-of-powers principles. As we explain in our brief:
Judge Newman alleges that Appellees are seeking to remove her from office. The uncontested facts demonstrate that: (1) on September 20, 2023, the Judicial Council suspended her for one year from hearing any cases at the panel or en banc level, based on her refusal to cooperate with the Special Committee's investigation (e.g., her refusal to submit to medical examination by doctors chosen by the Judicial Council); (2) on September 6, 2024, the Judicial Counsel renewed its suspension for a second year; (3) in recommending the September 2024 extension of Judge Newman's suspension, the Special Committee stated that the suspension is "subject to renewal if the refusal to cooperate here continues after" completion of the second year of suspension.
Those facts demonstrate Appellees' intent to deprive Judge Newman of her judicial authority for an indefinite period of time—at least until such time as she abandons her contention that it is they and not she who are engaging in misconduct. Appellees' long-term deprivation of Judge Newman's judicial authority is impossible to distinguish from an outright removal from office given her advanced age. At age 97, Judge Newman has a short life expectancy, and a multi-year suspension can plausibly be interpreted as an effort to run out the clock on her life.
Based on the above, Judge Newman has stated a valid claim that Appellees have violated her rights under separation-of-powers provisions of the U.S. Constitution. Article III, Section 1 states that federal judges "shall hold their offices during good behavior," and they can be removed from office only through a vote of impeachment by the U.S. House of Representatives and a trial and conviction by the Senate. See Art. I, § 3, cl. 6 (stating that "The Senate shall have the sole power to try all Impeachments") (emphasis added). In other words, a Judicial Council effort to remove a judge from office violates the Constitution by impinging on powers delegated solely to the Senate.
At the very least, Judge Newman is entitled to reversal of the district court's dismissal of Counts II and III. Those counts plausibly allege that Appellees' actions have effected her de facto removal from the bench, and that the Constitution expressly prohibit anyone other than the U.S. Senate from taking those actions. And unless Appellees can supply the Court with substantial evidence that Judge Newman is not actually subject to an indefinite suspension, it should grant her motion for injunctive relief and enter judgment in her favor on Counts II and III.
The Special Committee asserts that Judge Newman's refusal to acquiesce to its medical demands constitutes "a serious form of continuing misconduct." But that assertion cannot justify Appellees' decision to suspend Judge Newman indefinitely—a suspension which currently stands at two years and which Appellees threaten to lengthen unless Judge Newman acquiesces to their demands.
If Appellees consider the alleged misconduct sufficiently serious to warrant removal from office, their proper course is to refer the matter to Congress for possible impeachment and trial. What they may not do is take it upon themselves to effectively remove Judge Newman from office by suspending her indefinitely.
Perhaps the key point in our brief is the threat to judicial independent posed by the effective impeachment of Judge Newman by colleagues with whom she has sometimes disagreed with in numerous dissenting opinions:
Amici are particularly concerned by the threat to judicial independence posed by Appellees' alleged actions. Throughout her career, Judge Newman has demonstrated a willingness to express her views without regard to how those views will be perceived by her judicial colleagues. Her hundreds of dissenting opinions have no doubt exasperated some of those colleagues at times, but the law has benefitted from her willingness to express those dissenting views unabashedly. If the Federal Circuit Judicial Council succeeds in shutting down Judge Newman without going through the constitutionally prescribed process for removing Article III judges from office, other judges may conclude that they should hesitate to act boldly in defense of justice for gear of the adverse consequences of doing so.
I hope that the D.C. Circuit agrees with our position that only adhering to the constitutionally prescribed impeachment process for allegations of judicial misconduct will ensure that Article III judges can feel confident that their rulings will not endanger their job security.
