Special Committee's Suspension Recommendation Adopted by Federal Circuit

By Kevin E. Noonan -

As posted in July, the Special Committee of the Federal Circuit voted unanimously to maintain the suspension imposed on Judge Pauline Newman (see "Judge Newman Suspended for One Year by Federal Circuit") for another year.  On Friday, September 6th, the Judicial Council of the Court unanimously agreed to maintain the suspension.

The Order was succinct:  per curiam, the Council declared that:

Judge Newman shall not be permitted to hear or participate in any cases, at the panel or en banc level, for a period of one year beginning with the issuance of this Order, subject to consideration of renewal if Judge Newman's refusal to cooperate continues after that time and to consideration of modification or rescission if justified by an end of the refusal to cooperate.

In a footnote, the Order notes that "[t]he Council sees no need for oral argument in this matter" but permitted Judge Newman's counsel to file a brief.  In this brief, filed August 14th, counsel made seven assertions:

I. THE COMMITTEE IGNORED AND/OR IMPROPERLY DISCOUNTED JUDGE NEWMAN'S EVIDENCE OF CONTINUED FITNESS-

A. SUPREME COURT'S DECISION IN RUDISILL IS HIGHLY RELEVANT

B. JUDGE NEWMAN'S PARTICIPATION AT CONFERENCES IS HIGHLY RELEVANT

C. THE COMMITTEE IMPROPERLY (AND PREEMPTIVELY) DISCOUNTED THE OPINIONS OF JUDGE NEWMAN'S OWN DOCTORS

II. THE COMMITTEE IGNORED TROUBLING ACTIONS BY THE CHIEF JUDGE THAT FURTHER UNDERMINE CONFIDENCE IN THE FAIRNESS OF THE INVESTIGATION

III. REFUSAL TO SIT FOR AN INTERVIEW CANNOT SUBJECT JUDGE NEWMAN TO SANCTIONS

IV. COMMITTEE'S INSISTENCE THAT "COURT STAFF DESERVE TO WORK IN AN ENVIRONMENT FREE FROM ABUSE OR ANGER" IS IRRELEVANT TO WHETHER MENTAL HEALTH TESTING IS NEEDED

V. COMMITTEE'S RECOMMENDATION IS NOT A SANCTION, BUT AN ATTEMPT TO COERCE COMPLIANCE

VI. THE ONGOING LITIGATION PROVIDES SUFFICIENT REASON TO DECLINE THE COMMITTEE'S REQUESTS

VII. NO FURTHER SANCTIONS ARE WARRANTED.

A great deal of this argument has been made and rejected by the Special Committee (or the Judicial Counsel itself) before.  The brief notes that Judge Newman's suspension is the longest in U.S. judicial history and asserts that it is entirely unprecedented (emphasis in brief).  Reiterating a consistent theme in Judge Newman's earlier arguments the brief asserts that "Congress did not intend judiciary's self-policing mechanism to become an end-run around the constitutionally prescribed procedures for removing an Article III judge."  It demands that "[t]he Judicial Council should either bring this matter to a close or, if it believes that Judge Newman's behavior constitutes severe misconduct, refer Judge Newman for impeachment," consistent with the Judge's constitutional grounds for opposing the actions of the Special Committee and Judicial Council of the Court.

The rhetoric has increased in temperature in this brief, accusing the Special Committee's Report and Recommendation (adopted by the Judicial Council) as having an "anti-Judge Newman bent," that "the Committee is playing with a stacked deck" regarding their rejection of Judge Newman's doctors' opinions', terming the proceedings a "stealth impeachment" and accusing the Special Council of "obfuscation, double-speak, and outright illegality."  "[T]he 'my way or the highway' approach and the bullying tactics will not work," the brief strongly asserts.

The brief acknowledges the stark reality of Judge Newman's advanced age:  "While it is uncertain whether or not Judge Newman lives long enough to see herself vindicated, what is certain is that these proceedings will leave an indelible stain on the Federal Circuit and its misguided leadership."

On the purported merits, the brief notes that "the Committee has now recommended continuing an already-unprecedented sanction for no legitimate reason" and what is demanded, neurological and psychological testing, no matter its outcome, "would not change the fundamental fact: absent impeachment, whether or not to leave the bench is a decision reserved exclusively to Judge Newman (or Congress) and not to her colleagues."

According to the brief, Judge Newman's justification for her position of simple non-compliance with the Special Committee's demands is "the history of factual misstatements, misleading claims, legal errors, and overall hostility and antagonism" from the Special Committee (and thus her colleagues).

Regarding Rudisill, the brief asserts that the Supreme Court's reversal of the Federal Circuit and adoption of the rationales in Judge Newman's dissenting opinion stands as evidence that "Judge Newman is not only 'aware' of the issues present in cases [contrary to the Special Committee's allegations] but is able to resolve them better than many of her colleagues."  And as for allegations that the Judge has gotten slower in writing opinions, the brief asserts that "in balancing speed and minimizing the risk of error, Judge Newman values the latter over the former," citing Justice Scalia's dissent in Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 716 (1991), that "[a]ny adjudication of claims necessarily involves a tradeoff between the speed and the accuracy of adjudication."

For the first time, Judge Newman trains her rhetoric squarely at the Chief Judge, stating that "[t]o [do anything but bring these proceedings to an end and withdraw the suspension] is to allow any chief judge to make whatever accusations she may choose to make, launch an investigative process based on those accusations (whether they be true or not), hope to uncover something during that process, and then perpetually expand the investigation and the demands associated with it."  Indeed, one subsection of the brief is directed to allegations of "troubling actions" by that Judge as "further undermin[ing] confidence in the fairness of the accusation."

With regard to the Committee's dismissal of Judge Newman's own physicians' medical opinions on her competence, the brief states that "[i]n order for that concern [that Judge Newman is seriously impaired but her doctors have not recognized it] to have any validity, one would have to believe that Judge Newman's mental health exhibits Dr. Jekyll and Mr. Hyde qualities, i.e., that she is perfectly stable, courteous, even-keeled, and in control of her memory everywhere, except in and around 717 Madison Place, NW, thus preventing anyone outside the courthouse who interacts with her from perceiving her alleged "paranoia," "agitation," and "confusion" (opining that "[n]o rational person can or would believe that such a state of affairs exists").

The brief turns the tables on the Special Committee's allegations of Judge Newman's anger and unpleasant reactions to allegations against her by staff members, citing Katherine A. DeCelles et al., Anger Damns the Innocent, 32 Psych. Sci. 1214, 1214 (2021), for the principle that "anger is an invalid cue of guilt and is instead a valid cue of innocence; accused individuals . . . were angrier when they are falsely relative to accurately accused"; after all, according to the brief, "[i]t is highly likely that any other member of the Judicial Council would also be angry if accused by colleagues of incompetence."

In Judge Newman's view, the terms of the sanction establish that it is meant to coerce compliance and thus is outside the scope of the Disability Act and the Rules, which do not "give either the Special Committee or the Judicial Council coercive powers."  And these attempts at coercion would be unavailing in any case, the brief asserting that "[i]t should be abundantly clear by now—more than 18 months into these unwarranted proceedings—that Judge Newman 'will steadfastly refuse to yield to the coercion of' suspension, meaning the Committee and the Judicial Council has to move on."  In this regard, the brief asserts (for other reasons) that "[t]he Disability Act (to the extent it is constitutional), permits the Council to suspend Judge Newman only 'on a temporary basis for a time certain,' not until 'compliance' is achieved" under 28 U.S.C. § 354(a)(2)(A)(i), citing McBryde v. Comm. to Rev. Cir. Council Conduct & Disability Ords. of Jud. Conf. of U.S., 264 F.3d 52, 67 n.5 (D.C. Cir. 2001), and Hastings v. Jud. Conf. of U.S., 770 F.2d 1093, 1108 (D.C. Cir. 1985), as contrary precedent.

And again referencing the Judge's age, the brief asserts that "[i]t appears that the only reason the Committee is undaunted by the obvious collision between its chosen tack and the statutory and constitutional limits is its bet that, given Judge Newman's age, nature will take its course before her suspension runs into double digits."

As has been the tenor of all of Judge Newman's arguments, it is clear that neither Judge Newman nor her colleagues on the Federal Circuit are willing to back down or come to a reasonable compromise.  The history of these contretemps suggest that one way of avoiding them (and the risk of the "indelible stain" on the Court Judge Newman attributes to the Committee's behavior) would be for Congress to mandate that investigation of future allegations of incapacity not be made by judges sitting on the same court as the Judge being investigated.  Judge Newman asked for such transfer and her request was denied (with predictable results over the course of the last year).  Such a mandate would avoid the appearance of the Special Committee or Judicial Council being prosecutor, judge, and jury on the matter and might avoid the perhaps inevitable interplay of personalities that has arisen during the course of these proceedings.

In many ways nothing has changed; the Judicial Council has merely taken the procedural step of adopting the Special Committee's recommendation to continue Judge Newman's suspension from participating in the Federal Circuit's business for another year.  But without having to read between the lines it is abundantly clear that in many ways things have gotten worse and will continue to do so unless and until this matter is resolved.

Comments

[skeptical]

Bow or die...?

[skeptical]

For anyone following along, Judge Newman has passed yet another in-depth psychological exam.

https://ipwatchdog.com/2024/09/24/neurosurgeon-attests-judge-newman-extraordinarily-high-level-cognitive-ability/id=181529/