When Is a Judge Unfit, and What Can be Done About It?
The controversy surrounding Judge Pauline Newman of the Federal Circuit raises an interesting question for appellate advocates. Judge Newman, age 95 and appointed by President Reagan in 1984, was asked to step down by the circuit’s chief judge but declined the suggestion. Allegations against her include bouts of paranoia in which she claims that the court is spying on her, that her staff is betraying her and at least one of them should be arrested, that she engages in conversations with dead colleagues, and that she forgets how to log into her computer or where files on it can be found.
She is now being investigated by a special committee of the circuit about her competency to continue to serve as a judge. A recently released 26-page Order requires Judge Newman to undergo “neurological evaluation and neuropsychological testing to determine whether she suffers from a disability.” The order follows a previous one where Judge Newman refused to comply, labeling the requested medical records “irrelevant,” objecting to examinations by court-designated professionals and to their scope, and asking that the determination of her fitness to remain on the bench be determined outside the circuit. The new order rejects those objections and includes more specificity about what the investigative committee of fellow judges requires.
Judge Newman has responded with a lawsuit, filed May 10, in the federal district court in Washington, DC. It denies that she suffered a heart attack that prevented her from sitting during the summer of 2021, asserting instead that she was a member of 10 panels from June to September of that year and issued at least eight opinions from those sittings. Her productivity, it alleges, eclipses that of all but two colleagues. It further asserts that the circuit, by unanimous vote of the other judges, refuses to assign her any more cases. The complaint further states that Judge Newman’s judicial assistant and law clerk were reassigned without leave for the judge to replace them.
The complaint argues that the treatment of Judge Newman, constructively a removal from office, violates separation of powers because she serves “during good Behaviour,” removable from office only through impeachment and conviction by Congress. It further asserts that the circuit judicial council acted prematurely under the Judicial Conduct and Disability Act of 1980, which requires a completed investigation before action, comparing the procedure utilized to “Sentence first—verdict afterwards” from “Alice’s Adventures in Wonderland.” It further asserts a Fifth Amendment due-process violation “because the special committee is composed of witnesses to Plaintiff’s alleged disability.”
Judge Newman also claims the court has violated the First Amendment by virtue of a “Gag Order [that] forbids Plaintiff or her attorneys from engaging in any speech that would in any way publicize the ongoing disciplinary proceedings against Plaintiff.” Indeed, until the complaint was filed, the court’s order was filed under seal and released only because of the lawsuit.
Finally, Judge Newman asserts most of the authority claimed by the investigating committee is unconstitutional, due to the vagueness of “what constitutes a mental disability that renders a judge ‘unable to discharge all the duties of office’” and what remedies the judicial council may employ.
For appellate counsel facing a court with a judge displaying erratic behavior or otherwise unable to follow the argument, what happens in Judge Newman’s circumstances could be instructive. We may learn what authority courts have to intervene when a judicial council acts, what authority judicial councils may exercise, and what behavior provides grounds for action against a judge. We may also learn what appointment by the president and confirmation by the Senate, subject to impeachment, means in these circumstances.
Of course, appellate counsel has no means to challenge the assignment of a judge to a matter, absent a clear conflict of interest. Still, the Disability Act and the Rules for Judicial-Conduct and Judicial-Disability Proceedings provide a complaint process, which basically follows the process that the Federal Circuit employed – although in this instance the Chief Judge filed the complaint herself.
We have at least one historic precedent of a court acting to restrict a judge who had lost the ability to discharge his duties. Justice Gabriel Duvall, a once prominent Maryland lawyer and judge appointed to the Supreme Court by President Madison, became so sick and deaf during his final years on the bench that Chief Justice John Marshall ordered that the clerk not supply the infirm justice with any supplies, lest he actually write something about one of the cases before the Court.
Today, we live in a different world, but the problem of a judge who does not recognize when the time to step down has come remains. Whether that time has come for Judge Newman or not, her case and the Federal Circuit’s actions may provide some answers about what a court can do.