by Dennis Crouch
Federal Circuit Judge Pauline Newman has been fighting for her right to judge after charges implicating her fitness for office. Earlier this month, a committee of federal judges upheld Newman’s one-year suspension from new case assignments for refusing to cooperate with a misconduct investigation. Newman had separately sued her colleagues in DC District Court, but Judge Cooper has now dismissed most of that lawsuit on jurisdictional grounds. While a few counts remain, the court’s ruling deals a serious blow to Judge Newman’s attempt to challenge the judiciary’s self-policing procedures. Newman v. Moore, 23-cv-01334 (D.D.C., February 12, 2024). Newman v. Moore Decision.
The lawsuit centers around reports from Federal Circuit staff in 2021 about troubling behavior by Judge Newman potentially indicative of memory loss and confusion. These reports triggered Chief Circuit Judge Kimberly Moore to file a misconduct complaint against Newman under the Judicial Conduct and Disability Act. A special committee of Federals Circuit judges investigated the allegations against Judge Newman. When Newman refused the committee’s requests to undergo medical examinations and provide certain medical records, the committee narrowed its probe to focus on whether her refusal constituted misconduct. Ultimately, the committee concluded that her defiant stance constituted misconduct warranting suspension from new case assignments. This committee’s conclusion was then confirmed by the Federal Circuit Judicial Council, a committee consisting of the 11 other Federal Circuit judges.
Judge Newman then sued — alleging various constitutional violations. In its opinion, the district court dismissed over half of Newman’s claims, citing binding DC Circuit precedent holding that the Judicial Conduct and Disability Act channels review of as-applied challenges to the Judicial Conference rather than district courts. 28 U.S.C. § 357(c). And, the Judicial Conference has already rejected her claims.
The key precedent relied upon by the district court here is McBryde v. Comm. to Rev. Cir. Council Conduct & Disability Ords. of Jud. Conf. of U.S., 264 F.3d 52, 64 (D.C. Cir. 2001).
Judge McBryde argued that “the clause vesting the impeachment power in Congress  preclude[d] all other methods of disciplining judges.” … The circuit disagreed, concluding that the Constitution “sheltered” judges “from removal and salary diminution,” absent impeachment, but not “from lesser sanctions of every sort.”
Newman v. Moore at 33.
What is left are two facial challenges to the Act itself. After analyzing two of those challenges, the court found no likelihood Newman would succeed and thus refused to preliminarily enjoin enforcement of her case suspension.
The key facial challenge is that the Judicial Disability Act unconstitutionally delegates Congress’s impeachment power by allowing the suspension of Article III judges. But the district court squarely rejected this theory in a prior case, at least at this preliminary stage. According to the court, the Constitution protects judges only from removal or salary diminution, not lesser sanctions. Thus, discipline short of impeachment does not impinge on Congress’s role.
The sanction here is akin to a permanent bar (one year + renewals), especially for a 96 year old human. While Judge Newman tried to distinguish the precedent based on long-term suspensions potentially being equivalent to an unconstitutional “removal,” the court construed her facial claim as covering suspensions of any duration. Because binding precedent permits at least some suspensions under the act, the court found no likelihood Newman could show that every suspension application violates separation of powers.
I believe that at this point Judge Newman will have the ability to immediately appeal the denial of preliminary relief to the DC Circuit Court of Appeals.