The Volokh Conspiracy
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The Battle over Judge Newman's Unconstitutional "Stealth Impeachment" Continues
Judge Newman files a powerful reply to the unprecedented claim of the Federal Circuit's Judicial Council that she can be suspended from her duties indefinitely. And the Judicial Council's recent hiring of adversarial experts raises new questions about bias against Judge Newman.
I've previously blogged about the "stealth impeachment" of Judge Pauline Newman of the Federal Circuit. This post reviews Judge Newman's recently filed reply brief and the Federal Circuit's recent hiring of adversarial experts against Judge Newman. The whole process continues to raise troubling constitutional questions.
Some quick background: Judge Newman has been "temporarily" suspended by the Federal Circuit's Judicial Council due to her alleged failure to cooperate with a Special Committee of the Circuit. The Committee was investigating Judge Newman's alleged declining mental capacities. Judge Newman has sought federal judicial review of whether her indefinite suspension violates her constitutional rights. But a judge on the D.C. District Court dismissed many of her claims as not subject to judicial review and rejected her facial constitutional challenges to the Judicial Conduct and Disability Act. She has appealed to the D.C. Circuit.
In December, I joined former judges Susan Braden, Janice Rogers Brown, Paul Michel, 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. And now, just last week, Judge Newman herself weighed in with a powerful reply to the Judicial Council's position that it can simply suspend her from her judicial duties under the Judicial Conduct and Disability Act, at least so long as she continues to draw her salary. Here is Judge Newman's response (some citations omitted):
Article III does require that duly-appointed judges exercise "judicial power," which is "the power to make authoritative and final judgments in individual cases." William Baude, The Judgment Power, 96 Geo. L.J. 1807, 1815 (2008).
[The Judicial Council's] argument that a judge "subject to a temporary suspension who still holds her commission and is still entitled to draw her salary has not been dismissed from her office" must fail. First, entitlement to salary is a guarantee that is separate and apart from the guarantee that office will be held "during good Behaviour." Nat'l Comm'n on Judicial Discipline and Removal, Report, 152 F.R.D. 265, 287 (1993). Second, there is nothing "temporary" about Judge Newman's suspension. This is recognized even by neutral commentators. See Dennis Crouch, Is Google Simply Asking for More Efficient Infringement?, Patently-O (Jan.29, 2025), https://tinyurl.com/5bushudm ("I put 'temp' in scare quotes because it appears that [Judge Newman's] suspension is—in fact—permanent."). And third, having a framed commission on the wall while being unable to exercise any powers granted by that very commission, is meaningless. Judge Newman's commission, like commissions of Defendants-Appellees and of every judge of this Court, "empower[s] her to execute and fulfil the duties of [her] Office … and to Hold the said Office with all the powers … to the same of right appertaining …." Judge Newman's suspension from her judicial office deprived her of the effects of the very commission upon which Defendants-Appellees rely as evidence that she continues to hold office. While it is true that as a literal matter Judge Newman's seat on the Court is not vacant, the Constitution "deals with substance, not shadows." Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325 (1867). A functional removal runs afoul of Article III's protections no less than a formal removal would. Ergo, any act of Congress other than impeachment and removal that divests a judge of "the power to make authoritative and final judgments" violates Article III's guarantee that judges "shall hold their Offices during good Behaviour." U.S. Const. art. III, § 1. Such a divestment is a removal from office (whether permanently or temporarily) in all effects.
You can read Judge Newman's entire brief here.
Judge Newman's on-going suspension has the potential to interfere with many other cases. For example, with Judge Newman suspended, it would seem that en banc proceedings in the Federal Circuit could be improperly constituted—and later en banc decisions could be invalidated—because Judge Newman has been barred from participating. The New Civil Liberties Alliance (which is representing Judge Newman in the suspension proceedings) recently made this point in an amicus brief in an important en banc case currently before the Federal Circuit. En banc proceedings must be conducted before all judges in "regular active service." And yet Judge Newman is not being allowed to participate.
H/T to my co-blogger, Josh Blackman, for coming up with a pithy phrase that captures exactly what is happening here: "stealth impeachment." Of course, the Constitution does not permit stealth impeachment. That should be the end of the matter.
BTW: If you want to see the (supposedly mentally disabled) Judge Newman speaking just a few months ago, you can watch her cogently defending her legacy—and her right to serve—in a 49-minute video here. Frankly, she seems to be on the ball and "with it." Watching the video prompts one to wonder if her suspension has anything to do with the fact that she has long been a powerful critic of the judicial opinions of other members of the Federal Circuit?
Speaking of other members of the Federal Circuit, one curious thing about the Judge Newman's suspension is that it appears to have been orchestrated by the Chief Judge of the Federal Circuit, and then agreed to by other members of the Circuit. It is not unusual for issues of judicial conduct to be resolved by referrals to judges in a different Circuit from the one involved, who would have a more detached point of view. Josh Blackman made this point powerfully when the suspension proceedings started, explaining that the decision not to refer the issues to a different circuit
is especially problematic due to the nature of the allegations. Here, we are not dealing with a misconduct complaint from a litigant, or private citizen, who objects to something the judge did on bench, or in public. Rather, the allegations here concern actions that Judge Newman has taken during the opinion writing process. Other than the final date on which an opinion is actually published, the public has no knowledge about how the sausage is made. We do not know when drafts were circulated. We do not know how long judges took to make and revise edits. And we do not know whether complicated legal issues made the process take longer. The only people who have this evidence would be the fellow judges of the circuit, including [the Chief Judge], and court staff. Yet, [the Chief Judge] purports to decide whether there was misconduct. She is the fact-witness, the fact-finder, and the adjudicator. There is an apparent conflict of interest.
In its brief, the Judicial Council responds that it has given Judge Newman due process and that this is not a case that would be better handled by judges outside the Federal Circuit. But Josh's point about an apparent conflict of interest seems even more salient given recent events in the case, namely the Federal Circuit's hiring of adversarial experts against Judge Newman.
While Judge Newman's appeal remains pending before the D.C. Circuit on the jurisdictional and constitutional issues discussed above, just last Friday three new documents appeared on the Federal Circuit's website, under the heading "Release of Materials in Judicial Investigation." The documents are three expert reports, by three highly credentialed doctors. All three of the reports were finalized in the last several weeks and focus on rebutting medical reports that Judge Newman had submitted to the Judicial Council. The Judicial Council, of course, is supposed to be a neutral evaluator of allegations of disability. But these three expert reports bear all the hallmarks of adversary litigation—the proverbial "hired gun" problem.
So far as I can tell, none of the three reports discloses who exactly asked for the report. So far as I can tell, none of the three reports reveals the process by which the expert came to be selected, including whether the experts' opinions were vetted in advance. And so far as I can tell, while the experts were compensated at rates of between $400 to $650/hour, none of the reports explains exactly who is covering the substantial costs, which must amount to tens of thousands of dollars.
I assume that the three reports were solicited by lawyers working for the Judicial Council and that the taxpayers will ultimately foot the bill. But I have to wonder why money is being spent to hire experts on the merits of the case at this time, when the Judicial Council's position is that Judge Newman has been suspended only for alleged "lack of cooperation" with the process. The Council has argued to the D.C. Circuit that only a "narrow question" is before it, i.e., whether Judge Newman "committed misconduct in refusing to comply with Judicial Council orders absent good cause." (Judicial Council Br. at 29-30.) And the Council has further argued that the "relevant judicial council orders could not be clearer that [Judge Newman] has been only temporarily suspended from new case assignments, subject to reconsideration if she ceases refusing to comply with the Special Committee's investigation. The keys to the suspension are in her pocket." (Council Br. at 28.)
If the keys truly are in Judge Newman's pocket, one wonders why the Judicial Council seems to be providing the prison guards with additional ammunition to keep her off the job. In hiring adversarial experts challenging Judge Newman's reports, the Council has added fuel to the fire that it is biased against her.
There were ways the Council could have proceeded more fairly. As an illustration, the Federal Rules of Evidence provide two ways in which experts in a case can be secured: an adversarial selection process by a party in the case (Fed. R. Evid. 706(e)), or, alternatively, a court selection process with input from the parties (Fed. R. Evid. 706(a)). If the neutral court-selection process is used, the court typically will ask the parties to submit nominations and there are additional procedural safeguards involved (such as a right to depose the expert). But rather than proceed even-handedly, the Judicial Council has apparently determined to proceed in an adversarial way as a party aligned against Judge Newman, apparently determined to do whatever it takes to defeat her claim that she is entitled to serve.
So how will the arguments about all this ultimately unfold before the D.C. Circuit? Well, of course, that depends on what the attorneys argue to the D.C. Circuit. One interesting fact is that the Judicial Council is currently represented by the Civil Division of the U.S. Department of Justice. (See Council Br. at cover page.) Of course, in many routine cases, the Justice Department will provide legal representation for the Judicial Branch—at least when its positions are meritorious. But given the serious constitutional and other issues involved, this may be a case where the Justice Department's new leadership may wish to more carefully review the case and decide if the Council's litigating position is consistent with the current Administration's understanding of the Constitution.
In any event, the final decision on these constitutional issues will be made by the D.C. Circuit and, perhaps, the Supreme Court. The more I learn about Judge Newman's "temporary" suspension, the more concerned I become. Allowing a judge to be suspended indefinitely by her colleagues is a dangerous precedent that could be used for partisan maneuvering. I hope the D.C. Circuit will quickly put an end to the unconstitutional decommissioning of Judge Newman.
