The Federal Circuit's (unconstitutional and meritless) attack on Judge Newman is a slippery slope

[NolaAuTiger 3,295]

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.

[Didba 5,256]

She is 96. She needs to retire.

[CoffeeTiger 5,108]

Here's a WAPO article that gives a more balanced view from both sides of this issue. https://www.washingtonpost.com/dc-md-va/2023/06/05/newman-federal-circuit-oldest-judge-retirement-fight/

On one hand, ageism is a real thing and sometimes perfectly capable people are unfairly removed from jobs they can still do effectively because their bosses think a younger person could do it a little bit better or faster. 

On the other hand this woman is 96, and I know from experience that a lot of people who suffer dementia or reduced cognitive function VERY rarely seem to be able to recognize or acknowledge their mental declines or issues. If this woman's boss and colleagues (including other older colleagues) are concerned about signs of mental decline that they say they are witnessing first hand then I'd say that indicates strongly there could be a real issue at play. She seems to have a significant backlog of cases that she isn't working on and they say that the clerks she accuses them of taking from her are in fact voluntarily leaving because of her conduct. 

On the issue of congress...I'm not qualified to talk about the constitutionality of this issue, but what do you do if a judge is indeed suffering from progressing cognitive decline, yet congress chooses not to act or ignores the issue? The court can't continue to keep giving important cases to that judge if they don't believe the judge is properly doing her/his job or is capable of it moving forward. 

I personally am not seeing why Judge moore and the other judges would be making up all these supposedly "false" allegations like the WSJ suggests.....doesn't it just make their jobs harder not to be assigning more cases to Newman and to be trying to prevent her from doing a job if she was competently able to do it?. I don't see how the WSJ is connecting this individual issue with future courts "punishing" dissenting judges they don't like with similar committees....is there any examples of this actually happening, or of courts abusing this power?  

 

 

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"The court is no longer assigning Newman new cases.

Newman claims she was also stripped of her assistant, a law clerk and an office computer. Kimberly Moore, the Federal Circuit’s chief judge, has written that the staffers chose to leave and that Newman’s failure to understand the situation is a sign of her decline.

Some of Newman’s fellow judges in court orders have accused Newman of “paranoid” and “bizarre” behavior. Newman says she’s fine and it’s her colleagues who have lost their minds.

 

The Federal Circuit is an obscure court whose rulings on patents can have seismic impacts on financial markets, but the dispute over Newman’s refusal to step down joins one of many debates over how old is too old for a public official to do a job. Our federal judges are older than ever, as are the presidential candidates vying to nominate them and the senators who confirm them. Sen. Dianne Feinstein (D-Calif.) is facing pressure to resign from Democrats who say the 89-year-old’s health issues delayed efforts to hold the lifetime appointees on the Supreme Court accountable. Critics say Newman is an example of unhelpful egoism. She feels that in a world of rapid technological change, her long view is more important than ever.

Moore did not respond to requests for comment, but the court has made public nearly a dozen orders issued by the committee formed to investigate Newman’s competence. Those filings allege that Newman has shown “significant mental deterioration” since suffering a heart attack in 2021. Newman takes far longer than other judges to decide cases, they say, and writes fewer opinions. She could not complete recent online security training and blames hackers when she cannot find a file on her computer, according to the committee.

 

She allegedly forgot a court rule in place for the past five years, instead referring to a long-dead chief judge. She is also accused of mishandling a serious dispute between two of her staffers and threatening to have the complaining employee arrested. “Staff described her as being in attack mode,” Moore wrote in April. One is quoted as saying, “I believe Judge Newman is simply losing it mentally.”

Newman called the allegations “either false or grievously distorted.” They are also “disconcerting,” she said, coming from colleagues “that I’ve known for many years as straightforward, decent people.” Two other active judges on the court are in their 80s; most have served with Newman for at least a decade. She denies that she ever had a heart attack and says she is not conferring with ghosts of past judges. Her hacking concern, she says, is well-founded: “The judiciary’s administrative arm is constantly warning us about hacks and scams.”

 

Edited August 11, 2023 by CoffeeTiger

[NolaAuTiger 3,295]

1 hour ago, Didba said:

She is 96. She needs to retire.

 

52 minutes ago, CoffeeTiger said:

Here's a WAPO article that gives a more balanced view from both sides of this issue. https://www.washingtonpost.com/dc-md-va/2023/06/05/newman-federal-circuit-oldest-judge-retirement-fight/

On one hand, ageism is a real thing and sometimes perfectly capable people are unfairly removed from jobs they can still do effectively because their bosses think a younger person could do it a little bit better or faster. 

On the other hand this woman is 96, and I know from experience that a lot of people who suffer dementia or reduced cognitive function VERY rarely seem to be able to recognize or acknowledge their mental declines or issues. If this woman's boss and colleagues (including other older colleagues) are concerned about signs of mental decline that they say they are witnessing first hand then I'd say that indicates strongly there could be a real issue at play. She seems to have a significant backlog of cases that she isn't working on and they say that the clerks she accuses them of taking from her are in fact voluntarily leaving because of her conduct. 

On the issue of congress...I'm not qualified to talk about the constitutionality of this issue, but what do you do if a judge is indeed suffering from progressing cognitive decline, yet congress chooses not to act or ignores the issue? The court can't continue to keep giving important cases to that judge if they don't believe the judge is properly doing her/his job or is capable of it moving forward. 

I personally am not seeing why Judge moore and the other judges would be making up all these supposedly "false" allegations like the WSJ suggests.....doesn't it just make their jobs harder not to be assigning more cases to Newman and to be trying to prevent her from doing a job if she was competently able to do it?. I don't see how the WSJ is connecting this individual issue with future courts "punishing" dissenting judges they don't like with similar committees....is there any examples of this actually happening, or of courts abusing this power?  

 

 

------------------------------------------------------------------------------------------------

"The court is no longer assigning Newman new cases.

Newman claims she was also stripped of her assistant, a law clerk and an office computer. Kimberly Moore, the Federal Circuit’s chief judge, has written that the staffers chose to leave and that Newman’s failure to understand the situation is a sign of her decline.

Some of Newman’s fellow judges in court orders have accused Newman of “paranoid” and “bizarre” behavior. Newman says she’s fine and it’s her colleagues who have lost their minds.

 

The Federal Circuit is an obscure court whose rulings on patents can have seismic impacts on financial markets, but the dispute over Newman’s refusal to step down joins one of many debates over how old is too old for a public official to do a job. Our federal judges are older than ever, as are the presidential candidates vying to nominate them and the senators who confirm them. Sen. Dianne Feinstein (D-Calif.) is facing pressure to resign from Democrats who say the 89-year-old’s health issues delayed efforts to hold the lifetime appointees on the Supreme Court accountable. Critics say Newman is an example of unhelpful egoism. She feels that in a world of rapid technological change, her long view is more important than ever.

Moore did not respond to requests for comment, but the court has made public nearly a dozen orders issued by the committee formed to investigate Newman’s competence. Those filings allege that Newman has shown “significant mental deterioration” since suffering a heart attack in 2021. Newman takes far longer than other judges to decide cases, they say, and writes fewer opinions. She could not complete recent online security training and blames hackers when she cannot find a file on her computer, according to the committee.

 

She allegedly forgot a court rule in place for the past five years, instead referring to a long-dead chief judge. She is also accused of mishandling a serious dispute between two of her staffers and threatening to have the complaining employee arrested. “Staff described her as being in attack mode,” Moore wrote in April. One is quoted as saying, “I believe Judge Newman is simply losing it mentally.”

Newman called the allegations “either false or grievously distorted.” They are also “disconcerting,” she said, coming from colleagues “that I’ve known for many years as straightforward, decent people.” Two other active judges on the court are in their 80s; most have served with Newman for at least a decade. She denies that she ever had a heart attack and says she is not conferring with ghosts of past judges. Her hacking concern, she says, is well-founded: “The judiciary’s administrative arm is constantly warning us about hacks and scams.”

 

 

This is a separation of powers issue. Her age is irrelevant. 

Edited August 11, 2023 by NolaAuTiger

[NolaAuTiger 3,295]

56 minutes ago, CoffeeTiger said:

Here's a WAPO article that gives a more balanced view from both sides of this issue. 

The post I shared was written by an attorney at the NCLA, which represents Judge Newman. Yes, the NCLA as her counsel is going to advocate for her. But trust me, when an attorney publicly discusses a pending case he or she (or firm) is involved with, they cannot spew utter bs with no accountability. Do not merely write it off as slanted. 

[Didba 5,256]

2 hours ago, NolaAuTiger said:

 

 

This is a separation of powers issue. Her age is irrelevant. 

I agree on the first, but, her age is relevant imo, but there isn't a recourse. Constitutionally besides the one already opined to.

[Didba 5,256]

2 hours ago, NolaAuTiger said:

The post I shared was written by an attorney at the NCLA, which represents Judge Newman. Yes, the NCLA as her counsel is going to advocate for her. But trust me, when an attorney publicly discusses a pending case he or she (or firm) is involved with, they cannot spew utter bs with no accountability. Do not merely write it off as slanted. 

 

3 hours ago, CoffeeTiger said:

Here's a WAPO article that gives a more balanced view from both sides of this issue. https://www.washingtonpost.com/dc-md-va/2023/06/05/newman-federal-circuit-oldest-judge-retirement-fight/

On one hand, ageism is a real thing and sometimes perfectly capable people are unfairly removed from jobs they can still do effectively because their bosses think a younger person could do it a little bit better or faster. 

On the other hand this woman is 96, and I know from experience that a lot of people who suffer dementia or reduced cognitive function VERY rarely seem to be able to recognize or acknowledge their mental declines or issues. If this woman's boss and colleagues (including other older colleagues) are concerned about signs of mental decline that they say they are witnessing first hand then I'd say that indicates strongly there could be a real issue at play. She seems to have a significant backlog of cases that she isn't working on and they say that the clerks she accuses them of taking from her are in fact voluntarily leaving because of her conduct. 

On the issue of congress...I'm not qualified to talk about the constitutionality of this issue, but what do you do if a judge is indeed suffering from progressing cognitive decline, yet congress chooses not to act or ignores the issue? The court can't continue to keep giving important cases to that judge if they don't believe the judge is properly doing her/his job or is capable of it moving forward. 

I personally am not seeing why Judge moore and the other judges would be making up all these supposedly "false" allegations like the WSJ suggests.....doesn't it just make their jobs harder not to be assigning more cases to Newman and to be trying to prevent her from doing a job if she was competently able to do it?. I don't see how the WSJ is connecting this individual issue with future courts "punishing" dissenting judges they don't like with similar committees....is there any examples of this actually happening, or of courts abusing this power? 

@NolaAuTiger is correct about that.

[NolaAuTiger 3,295]

2 hours ago, Didba said:

I agree on the first, but, her age is relevant imo, but there isn't a recourse. Constitutionally besides the one already opined to.

Good point. You are right; and I stand corrected.