Enough is (Apparently) Enough - Part III

D.C. Bar Association File Amicus Brief in Newman v. Moore et al.

By Kevin E. Noonan --

It has been a remarkable feature of the Federal Circuit's suspension of the Honorable Judge Pauline Newman that few have taken a stand publicly on the propriety of the suspension (something the Judge herself recently mentioned; see "An American (and Entirely Unnecessary) Tragedy").  That has now changed, with the D.C. Circuit Court of Appeals receiving amicus briefs from four separate groups submitted in support of Judge Newman's challenge.  These amici ask the Court to reverse the District Court's dismissal of her lawsuit challenging the Judicial Council's actions on, inter alia, Article III and due process grounds.  Another one of these amicus briefs is discussed herein, submitted to the Court by the District of Columbia Bar Association.

The brief begins with reciting what has perhaps become Judge Newman's preeminent judicial distinction, the frequency of her dissenting from her colleagues' opinions and how frequently her views have been vindicated, including by citations to those dissents in Supreme Court opinions reversing the Federal Circuit.  This combination of judicial independence and a propensity for her views to be legally correct, in light of her "indefinite suspension" deprives our legal community of an experienced and fiercely independent voice in the ongoing weaving of the tapestry of caselaw at the Federal Circuit" and amounts to an impeachment, which being effected by the Judicial Council circumvents the Constitution, the brief asserts.  The brief also asserts that there is "widespread, but silent, support" for the Judge, and a concomitant fear ("justified or not") that such support if voiced publicly might "adversely impact [their] own appeals before [the Federal Circuit]" (itself a somewhat damning indictment).  But to the extent this is current reality of the relationship between the Court and the patent bar, this dishonest silence "underscores why this Court should approach with skepticism the suspension and Appellees' refusal to transfer the complaint against Judge Newman to another circuit's judicial council."

Amounting to a mere 548 words, the brief, unfettered by discussion of the underlying legal basis for assessing competency amongst the federal judges making up the judicial branch of the government, it in some ways provides the most powerful advocacy for the D.C. Circuit Court to rectify the current situation.

Comments

[Nancy J Linck]

The major IP organizations remain silent, even though Judge Newman was a major contributor to them before she joined the court. Shameful! I am embarrassed to say that I have remained a member of these organizations, in spite of such lack of leadership. Why? Supposedly because the chief judge might retaliate? If so, very cowardly and not the type of thinking I would expect from such organizations.