https://www.wsj.com/articles/judges-attack-judicial-independence-newman-federal-circuit-discipline-age-politics-law-95bee95a?mod=opinion_lead_pos7
A disturbing constitutional drama is unfolding in the U.S. Court of Appeals for the Federal Circuit. Chief Judge Kimberly Moore has effectively deprived one of her colleagues, Judge Pauline Newman, of her judicial office. Although not as noisy as recent attacks on the Supreme Court, this could be as dangerous for our republic. Threats to judicial independence ordinarily come from the political branches of government. But Judge Moore’s antics are apt to become a permanent self-inflicted wound to judicial independence.
The Federal Circuit is often described as obscure, with a docket dedicated mostly to patent law, veterans appeals, government contracts and other technical matters. Yet the court is vitally important for the nation’s economy and for stopping takings of private property and other government abuses.
Judge Newman, 96, is the circuit’s longest-serving judge. She is known for her incisive dissents, which are often vindicated by the Supreme Court. In March Chief Judge Moore convened a “special committee” with some colleagues to charge Judge Newman with being so disabled that she is no longer competent to serve in her office.
The probe was based on demonstrable falsehoods—such as that Judge Newman had suffered a heart attack. Another accusation was that she was mentally unfit. Yet a neurologist at George Washington University examined Judge Newman and found her “cognitive function sufficient to continue her participation in her court’s proceedings.” A law professor specializing in intellectual property examined her work for the court and observed that she showed no “significant drop in the quality or thoroughness of her opinions over the past decade.” Randall Rader, a former Federal Circuit chief judge, said Judge Newman is “as mentally sharp and capable as she had been for more than 40 years that I have known her.”
The proceedings violate due process because Chief Judge Moore is serving as accuser, prosecutor, witness and judge. Judge Newman is well-known as an intellectual powerhouse whose understanding of patent law conflicts with that of many of her colleagues. That should have led her fellow judges to worry about at least the appearance of a conflict of interest.
Even if the allegations were true, one might have expected Judge Newman to get a hearing on the evidence before being punished. Yet even before any formal investigation, and in violation of the applicable statute and rules, Judge Moore and her allies on the court barred Judge Newman from hearing new cases.
The Constitution gives Congress the sole authority to remove judges. Judge Moore and her confederates are usurping lawmakers’ impeachment power.
Worst of all, Judge Moore’s questionable committee will cause lasting damage to the entire federal judiciary. The imposition of a disciplinary proceeding or medical examination with a threat of defenestration runs only one way—against wayward jurists, not against a chief judge or other members of a majority. Judges will have to think twice before dissenting.
This risk will be especially serious for the most experienced federal judges. Many serve with distinction into old age—some with serious but manageable disabilities, from blindness to multiple sclerosis.
This wouldn’t have happened if the judiciary hadn’t acquired its own version of administrative power—operating through judicial disciplinary proceedings. Against this threat, like the rest of the administrative state, the court system seems paralyzed. Judges stand by, nervously watching while the judiciary debases itself.
Good point. You are right; and I stand corrected.
