The Volokh Conspiracy
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Judge Newman Loses Her Effort to Undo the "Temporary" Bar on Receiving Cases
The D.C. Circuit declines to reach the merits of many of the serious underlying constitutional questions.
I have previously blogged about the "stealth impeachment" of Judge Pauline Newman of the Federal Circuit. Judge Newman presented serious constitutional questions to the D.C. Circuit about her supposedly "temporary" suspension from active service on her court. Today, the D.C. Circuit rejected Judge Newman's challenges. The panel ruled that, under earlier Circuit precedent, it was barred from reviewing her constitutional arguments. The panel essentially remitted Judge Newman to the Judicial Conference to pursue the issues, while also suggesting some possible new judicial avenues Judge Newman might consider.
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 sought federal judicial review of whether her indefinite suspension violated 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 appealed to the D.C. Circuit.
In December, I joined former judges Janice Rogers Brown, Paul R. Michel, Randall R. Rader, Thomas L. Vanaskie, and Susan G. Braden 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 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.
Today's panel decision concluded it was unable to review Judge Newman's most substantial constitutional claims on their merits:
As the district court recognized, our ability to review Judge Newman's statutory and constitutional claims is largely foreclosed by binding precedent. In McBryde v. Committee to Review Circuit Council Conduct & Disability Orders of the Judicial Conference of the United States, 264 F.3d 52 (D.C. Cir. 2001), this court held that Congress precluded our jurisdiction over statutory and as-applied constitutional challenges to judicial council orders. Id. at 58–63. Instead, McBryde concluded, Congress intended for those claims to be considered exclusively by the Judicial Conference. Id. This panel has no authority to depart from McBryde.
As a result, we have jurisdiction to consider only Judge Newman's facial constitutional challenge to the Act's case-suspension provision. Under well-settled standards for such claims, that facial challenge fails because—irrespective of whether the provision's application to Judge Newman is constitutional—Judge Newman agrees that the provision has many other constitutional applications.
The panel emphasized the narrowness of its decision:
We therefore affirm the district court's judgment. As just explained, however, our reasons for affirming are unrelated to the strength of Judge Newman's statutory claim or as-applied constitutional claims. Nor does our decision reflect our views of the underlying dispute or of Judge Newman's suspension. Under McBryde, any recourse for Judge Newman must come from a judicial council or from the Judicial Conference, the entity statutorily empowered to review council decisions.
In concluding its decision, the panel seemed to invite further review of the serious constitutional issues at stake, but by the en banc Court (which could overrule McBryde) (some citations omitted):
[A]s a panel of this court, we are unable to overrule McBryde, and so do not resolve whether McBryde was rightly decided. To be sure, there are substantial arguments that—if judicial councils and the Conference are properly regarded as administrative bodies—the McBryde majority misapplied the clear-and-convincing-evidence test when interpreting Section 357(c)…. It relied on a potentially strained reading of the relevant legislative history. And its holding could be taken to suggest that certain constitutional questions might be heard in no forum (if the Judicial Conference does not consider those challenges) and that, regardless, the Judicial Conference—not the Supreme Court—would be the last word on major questions of constitutional law.
The seeming absence of a judicial forum to address Newman's as-applied constitutional claims itself raises constitutional concerns. Judge Newman presents substantial arguments that her suspension—which has now lasted nearly two years, with a third year recommended—threatens the principle of judicial independence and may violate the separation of powers. She further contends that the refusal to transfer her case to a different circuit deprived her of an impartial tribunal, which if correct would raise due process concerns.
Those doubts, however, would at most suggest that McBryde was wrong the day it was decided, not that it does not bind us now.
Panel op. at 20-21 (some citations omitted).
The panel also dropped an intriguing footnote about the possibility of mandamus review in the U.S. Supreme Court:
[The Judicial Council et al.] suggested at oral argument that the Supreme Court may be able to review Judicial Conference orders via mandamus. We express no opinion on that possibility.
All Judge Newman asked of the panel was for a judicial forum to hear her claims on the merits. The panel decision suggests several possibilities that Judge Newman might consider for obtaining such review. And the panel also explained that, because its decision might mean that Judge Newman "cannot raise her as-applied constitutional arguments in any Article III forum ….," it is "up to the Judicial Council and the Judicial Conference to genuinely engage with those arguments." Next month, the Judicial Council will apparently decide whether to renew Judge Newman's "temporary" suspension for yet another year.
No doubt, today's ruling will not the last word on all these issues. At some point, some court or tribunal somewhere will hopefully recognize what should be obvious: Judge Newman is subject to stealth impeachment by unelected judges. That is not the process the Framers intended.
