Is Judge Pauline Newman Entitled to Her Day in Court?

Josh Blackman, Jonathan Adler, and I have all previously blogged (here, here, and here) about issues relating to the “stealth impeachment” of Judge Pauline Newman of the Federal Circuit. Judge Newman has been removed from active service on the court by fellow judges on her Circuit. Judge Newman challenged the removal. But the D.C. Circuit held that the Judicial Council’s Reform and Judicial Conduct and Disability Act of 1980 blocks any review of the lawfulness of this action. Today’s cert petition by Judge Newman presents the important jurisdictional question of whether she is entitled to her day in court to challenge the removal. Her petition begins with this powerful introduction:

This petition presents questions concerning crucial constitutional and statutory aspects of lifetime tenure and judicial independence, especially the availability of judicial review for intra-branch infringements on judicial service. These questions affect the very independence of Article III courts and potentially affect every member of the federal judiciary and every litigant who appears before them. For three years the Federal Circuit has been operating short-handed because the judges of that court have summarily removed its longest-serving and most storied jurist (its “Great Dissenter”) from the bench.

The D.C. Circuit Court of Appeals held that the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (“the Disability Act”) bars review of the unlawful actions taken against Judge Pauline Newman. This administrative removal of a judge who is famous for dissenting from her colleagues, by those same colleagues, with judicial refusal to review the merits of the action, undermines the judicial independence that is a vital foundation of our constitutional design. Every judge who gets crosswise with her chief judge or her colleagues must now worry whether similar tactics could be used to remove them.

Judge Newman has continued to speak and write before the legal community, and no finding of disability has been made concerning her in the years since the unlawful administrative orders began. She voluntarily underwent and passed three expert evaluations of her mental fitness and was reported as having the mental ability of someone decades younger. She now has been suspended longer than any federal judge in history. The length of the suspension, the apparent intention to keep her off the bench permanently, the same judges acting as complainant, witnesses and judges, and the refusal to transfer the matter to another circuit for neutral investigation are unprecedented.

Judge Newman’s petition also explains the practical reality that her removal from active service is, for all practical purposes, a stealth impeachment:

Chief Judge Moore is using the Disability Act to circumvent these constitutional protections, in an attempt to implement a constructive discharge of a judicial colleague with whom she no longer wishes to serve. These heavyhanded tactics cannot be tolerated if the independence of Article III judges is to be preserved. Other judges who are watching what is happening to Judge Newman can only wonder if a similar fate will befall them if they fail to stay on the good side of their chief judge. This Court cannot allow the internal politics of a court to sideline a Senate-confirmed judge and threaten the independence of other judges who may fear similar reprisals from their colleagues. All of this needs to be nipped in the bud before any further damage is done to the Constitution’s protections of judicial independence.

Judge Newman’s colleagues have thus far succeeded in silencing her frequently dissenting voice on the court, despite her presidential appointment and lifetime tenure. And, indeed, her effective removal from the bench has had a dramatic effect on the number of dissents issued in the Federal Circuit. One recent study concluded that since Judge Newman’s removal from the bench, the rate of dissent in the Federal Circuit has dropped from 12% to 4%. Just losing Judge Newman’s own dissents does not fully account for that drop. This means that other judges are dissenting less often than they used to when Judge Newman was actively participating and setting a good example. Or, perhaps what has happened to Judge Newman has raised the perceived costs of dissenting and intimidated some judges at the margins from authoring dissents. Either way, the Federal Circuit and those who litigate before it are worse off with the lack of vibrant dissent to stimulate more careful thinking and adjudicating.

Attacks on the independence of the judiciary have been increasing from both the left and right, and from the executive, legislative, and even within the judicial branch.
For those reasons—and for the reasons given above—it is imperative for the Court to step in and issue a strong statement in support of judicial independence and make clear that the only appropriate method of removing a federal judge is through the constitutional impeachment process.

You can read all of Judge Newman’s strong cert petition here. It is important to note that the petition does not ask the Supreme Court to rule on the merits of Judge Newman’s challenges, only that she is entitled to have a federal court consider her claims — both statutory and constitutional — to the extent that she is seeking forward-looking relief.

Note that, in the D.C. Circuit, I joined an amicus brief with former judges Susan Braden, Janice Rogers Brown, Randall Rader, and Thomas Vanaskie supporting Judge Newman — and may do so in the Supreme Court as well.

I hope that the Supreme Court will decide to review of this exceptionally important jurisdictional issue that, as the petition powerfully explains, goes to the very core of judicial independence.

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