An Opinion on Chief Judge Moore’s Reported Unprecedented Effort to Remove Judge Newman

by David Hricik, Mercer Law School

As has been reported by Dennis on the main page, by Gene Quinn on IP Watchdog (here), and by various media I am seeing, Chief Judge Moore reportedly threatened Judge Newman with a petition to remove Judge Newman as incompetent to carry out her duties unless Judge Newman agreed to take senior status. Gene points out the incongruity of Chief Judge Moore’s reported position that Judge Newman may continue to serve as a judge, though Chief Judge Moore ostensibly believes she is incompetent to do so.

I’ve now seen several other articles about this, reporting more or less a consistent story. Hopefully, it’s not true.  Beyond what has been reported, I would add the following two facts.

One, I saw Judge Newman (with Judge Lourie and former Judge O’Malley) speak at at the USPTO three weeks ago.  (I was there speaking on patent ethics.) Judge Newman was eloquent, coherent, cogent, and spoke passionately about various topics, including section 101 (which requires a bit of mental agility, I would say).  As others have pointed out, Judge Newman has, for a very long time, often taken more time in getting her opinions out than other judges, but I have seen nothing in those opinions that show incompetency, and if that delay were the basis that was a well known fact decades ago.

Second, this is the second time Chief Judge Moore has engaged in what is unprecedented conduct that has raised concerns about the integrity of the Federal Circuit.  Boiled way down: A few months back, Judge Moore dissented in a case, 2-1, with Judge O’Malley writing the majority opinion. Once Judge O’Malley retired and without notice to the parties, Chief Judge Moore created a “new” panel and her dissent as a result became the 2-1 majority, with the original majority judge dissenting.  That unprecedented flip of the result of a case is the subject of  a petition for cert in which a group of retired circuit judges as amici wrote (here), in part: “Allowing judges to swap out under the pretense of panel rehearing to change already-published decisions undermines public confidence in the judiciary.” (Full disclosure: I’m on an amicus brief with a different group in that case, available here.)

Hopefully, the reports about Chief Judge Moore using the threat of judicial discipline to force Judge Newman to opt for senior status are wrong, and hopefully the Supreme Court will correct the other matter. At stake is public confidence in the judiciary.

Update:  the Federal Circuit unsealed an order by Chief Judge Moore advocating for Judge Newman’s removal, which does indicate the stories discussed above seem basically to have been true. It is here.