Judge barred after fight over health
At 96, mental fitness questioned
The order from the US Court of Appeals for the Federal Circuit begins with praise. Judge Pauline Newman is called “a heroine,” “highly valued and respected,” and “the most beloved colleague,” one who has served for 39 years.
But it’s not an award or a retirement announcement; it’s a notice that Newman has been suspended from the court for a year for "serious misconduct." Her transgression: refusing to cooperate with an investigation into whether, at the age of 96, she can no longer do the job. The suspension could be renewed after a year, the court says.
"We are acutely aware that this is not a fitting capstone to Judge Newman’s exemplary and storied career," the other active judges of the court wrote in a 70page explanation of the decision. "We all would prefer a different outcome for our friend and colleague. However, we have a solemn obligation . . . to take action — and not to simply look the other way — when it appears that a judge of this Court is no longer capable of performing the duties of her judicial office."
Newman has sued her colleagues, providing an unusually public view into what is usually a secretive process. The suspension comes as lawmakers such as Senate Minority Leader Mitch McConnell, a Republican from Kentucky, and Senator Dianne Feinstein, a Democrat from California, face calls to step down over age-related health issues. Newman refused to cooperate unless the investigation was transferred to a different court, arguing that there would be inevitable conflicts of interest if her colleagues were evaluating her fitness and questioning their own staff.
“This could have been done in a much more respectful, nonhostile, and appropriate manner simply by transferring to another tribunal,” her attorney Greg Dolin said. “This was entirely avoidable.” The lawsuit is ongoing; Dolin says Newman also plans to appeal Wednesday’s order to the federal courts’ Committee on Judicial Conduct and Disability, made up of seven judges from around the country.
The court says in its order that it is Newman’s recalcitrance that led to these "very sad proceedings."
Newman was one of the first judges appointed to the Federal Circuit, which hears cases involving patents and trademarks along with some other claims involving government contracts and benefits.
Chief Judge Kimberly A. Moore argued that Newman’s output in the past two years was so meager, despite a reduced caseload, that it was necessary to ask her to retire or take less onerous “senior status.”
Newman refused. Moore then convened a panel of three judges to investigate Newman’s competence, which recommended the suspension to the rest of the court in July. Newman has not been assigned new cases since the investigation began, which she says in her lawsuit is a denial of due process.
Because Newman would not submit to a neurological examination and interview set up by the committee or share her medical records, the court ultimately ruled only on her failure to engage with the investigation. But the order also details what the judges describe as "overwhelming evidence that Judge Newman may be experiencing significant mental problems."
Newman did undergo about four hours of evaluation with a forensic psychiatrist and a neurologist, both of whom deemed her mentally fit, and argues she is actually slightly more productive in recent months than previously.