Washington, D.C. — The nation’s oldest federal judge, Pauline Newman, told the Daily Caller News Foundation she cannot understand what she described as a “vindictive” effort by her colleagues to remove her from the bench.
Nearly a year ago, U.S. Court of Appeals for the Federal Circuit Chief Judge Kimberly Moore issued an order relaying concerns half the court’s judges held about 96-year-old Newman’s “mental fitness,” alleging she was “unable to discharge all the duties” of her office. Moore took an unusual step: the committee to investigate these charges would include herself and two other judges from the same court.
“[I]t’s turned into such a malicious — that’s my word, but I believe it — vindictive operation, that I think it’s just sort of out of proportion,” Newman told the Daily Caller News Foundation during a recent interview in her chambers at the Court of Appeals for the Federal Circuit.
Newman’s decision not to participate in the investigation on her colleagues’ terms by undergoing an independent medical examination led to misconduct charges and a year-long suspension from hearing new cases.
“Any judge can be impeached for sound reason, but the impeachment is by the Congress, not by the guy next door, whose opinion you’ve just criticized,” she told the DCNF.
President Ronald Reagan appointed Newman, then a patent law attorney of 30 years, to the Federal Circuit in 1984. The Supreme Court has often adopted her opinions in its reversals of the Federal Circuit, and she has been dubbed the “great dissenter” and the court’s “institutional memory bank.”
Newman didn’t offer a definitive explanation for the opposition. She did, however, note that some people disagree with the perspective that drives her dissents.
“By removing me from the court, my share of the decision that would support patents or other areas of intellectual property, trade secrets or copyright or trademarks, whatever comes before us, is eliminated,” she said.
‘Get Out Or Else’
During the DCNF’s interview, Newman appeared sharp, with a lively wit, warm demeanor and no difficulties speaking about various complex legal concepts and ideas that have remained on her mind (though she did mention in the course of the conversation that she was “hard of hearing”). Her colleagues paint a different picture.
“Concerns have also been raised that Judge Newman may suffer from impairment of cognitive abilities (i.e., attention, focus, confusion and memory) that render Judge Newman unable to function effectively in discharging case related and administrative duties,” Moore wrote in the complaint last year. “It has been stated that Judge Newman routinely makes statements in open court and during deliberative proceedings that demonstrate a clear lack of awareness over the issues in the cases.”
The ensuing investigation encompassed “more than 20 interviews with court staff,” including affidavits submitted by a staff member in the IT office, human resources and a paralegal for Newman.
“These are very sad proceedings for all involved,” the Judicial Council of the Federal Circuit wrote in September. “Judge Newman and her counsel have aggressively sought to discredit this entire process by trying their case in the press while conjuring a narrative of ‘hostile,’ ‘disrespect[ful],’ and ‘appalling’ treatment marked by exercises of ‘raw power,’ all borne out of ‘personal animosity’ toward Judge Newman.”
Newman’s lawsuit, filed against her colleagues in May 2023, contends that Moore’s initial order was “riddled with errors,” including its description of a heart attack Newman allegedly suffered in the summer of 2021. During that time, Newman’s complaint states she sat “on ten panels and issued at least eight (including majority, concurring, and dissenting) opinions.”
“Had Judge Newman suffered a heart attack, it would be extremely unusual for anyone, let alone a 94-year-old person, to serve throughout that period without skipping a beat (so to speak),” the lawsuit says.
Newman passed examinations by two medical professionals, though the judicial council dismissed their validity, according to the New Civil Liberties Alliance.
Newman told the DCNF she hasn’t had much of a chance to refute the core factual concerns, as her refusal to cooperate quickly shifted it to a misconduct case.
In September 2023, the Judicial Council of the Federal Circuit issued a year-long suspension barring Newman from hearing cases after finding she did not have “good cause” for refusing to cooperate. In February, the Judicial Conference of the United States’ Committee on Judicial Conduct and Disability upheld the suspension.
As for Newman’s lawsuit, D.C. District Court Judge Christopher R. Cooper rejected last month her request for a preliminary injunction that would immediately reinstate her to her position but allowed portions of the case to proceed. Her colleagues moved Friday to toss the rest of the case.
“I would have thought going on my 40th year there would be some kind of ceremony of my jurisprudence, as courts generally do, and a dignified farewell, not an alternative: get out or else,” she said, adding with a smile, “so I decided not to get out or else.”
Due Process For The Judge
Moore’s order last year quickly sparked due process concerns: should the judges who are accusing Newman be the same ones investigating? Former Federal Circuit Chief Judge Paul Michel sounded the alarm in July about Moore and the others acting as “as accuser, investigator, prosecutor, and judge,” an issue Newman herself raised in the lawsuit.
The clerk’s office told the DCNF that Moore did not have a comment on the case.
“That is just not how it is done in any kind of free world,” NCLA Senior Litigation Counsel Greg Dolin, Newman’s attorney, told the DCNF. “And that is why every single case that we have been able to find where a circuit judge’s behavior or abilities are concerned, and it has been transferred to Judicial Counsel of a different circuit precisely to avoid this very problem.”
Her case also reignited a debate around term limits for judges. Newman told the DCNF she would not be opposed to a law implementing term limits, noting the value in bringing in “new voices.”
“What I am vigorously against is what happened to me,” she said.
Newman told the DCNF she opted not to take senior status when she became eligible at 65 because she thought the court needed her voice. Now, Newman worries that if her colleagues prevail, it will impact the “entire image and structure of the federal judiciary.”
For her part, Newman said she is keeping busy with speaking events and other writing projects, which she normally would have turned down due to lack of time. But she intends to keep up the fight to maintain her position.
“I keep learning things and thinking that I’m smarter than I was last year, because I’ve seen this much more of the world, this much more of technological development or international leadership and how commerce works,” she said. “There’s an advantage, even to age, to be balanced against the reasons for having a fixture.”
