“The investigation…is fast becoming a credibility issue for the Chief Judge and the court as a whole…. No one questions the responsibility of a court to police itself, if it can. But when, as here, that involves a conflict and the internal process appears to be failing, another path should be pursued.”
Anyone reading this by now knows of the current situation with Judge Pauline Newman and the investigation initiated by Chief Judge Kimberly Moore. As a former chief judge of the Court of Appeals for the Federal Circuit, I understand the challenges of overseeing smart, independent, and strong-willed judges, and I’ve gained a somewhat unique perspective on the ongoing saga, albeit as an outsider.
As an outsider no longer privy to inner court workings, I’ve refrained from publicly commenting on Judge Newman’s situation. It’s not my position, after all, to opine without knowing the facts, or to reflexively second-guess Chief Judge Moore, the Special Committee, or the Federal Circuit Judicial Council.
Events have now reached a point, though, where I feel compelled to publicly ask why the court isn’t taking what seems to be the wiser, less disruptive path for resolving the situation. Four other chiefs preceded me, and three followed. This is the first time in the history of the Federal Circuit where an internal dispute has been allowed to mushroom into an unprecedented public fight.
The Concern: Integrity, Justice, Fairness
To be clear, my concern is three-fold: First, the integrity of the court; second, the interests of parties seeking justice at the Federal Circuit; and third, procedural fairness and balance to Judge Newman, as well as the other Federal Circuit judges. All are of equal concern, and continuing the status quo is no way to ensure swift and efficient justice, which depends on litigants and the public having confidence and trust in the court and its judges.
As to the issue of fairness, consider that, contrary to established norms that alleged sanctionable conduct must be judged by an impartial judge, here the Chief Judge and the Special Committee are continuing to act as accuser, investigator, prosecutor, and judge. That would not be acceptable in any other circumstance, and I’m hard-pressed to see how it can be acceptable here. It cuts against the very foundation of due process, as well as raising thorny constitutional concerns. An unfair process risks damaging the legacy of all the current judges agreeing to what appears to be a conflicted process.
Although this conflict of roles was noted early in the investigation in an article in IP Watchdog by its publisher, Gene Quinn, the Chief Judge and the Special Committee still have not changed course. As the Supreme Court said in In re Murchison in 1955, “It would be very strange if our system of law permitted a judge to act as a grand jury and then try the very persons accused as a result of his investigations.”
The investigation, initiated by the current Chief Judge against the court’s longest serving member, is fast becoming a credibility issue for the Chief Judge and the court as a whole. It has already become a personal tragedy for the target of the investigation, Judge Newman. Initially, she was charged with physical and mental disability—the latter being perhaps the most serious accusation one can make against a fellow judge. Now, she is also charged with alleged misconduct for not complying with the Special Committee’s orders to produce medical records, to undergo “a neurological examination and a complete neuro-psychological battery of tests,” and to sit for “a video-taped interview” with the Special Committee.
The Court Cannot Fix This Itself
The fight is now very public, already an embarrassment to the court and, potentially, later to the entire federal judiciary. On top of the numerous news stories, dozens of documents (all publicly filed in a lawsuit in federal court in the District of Columbia, after being released by the court) lay bare the extensive details of the allegations against Judge Newman and her responses to the allegations.
Judge Newman denies the key allegations made by the Chief Judge and endorsed by the Special Committee (which is composed of the Chief Judge, as well as Judges Prost and Taranto, who were appointed by the Chief). So far at least, their actions have been backed by the court’s Judicial Council, which includes all its active judges (minus Judge Newman).
Like the Chief Judge and the Committee, the Council has also declined requests by Judge Newman’s lawyers to transfer the matter to another Circuit’s Judicial Council. Their members, unlike the Federal Circuit’s, would be able to make a disinterested assessment of the facts about the alleged disability, without being entangled as witnesses at a final hearing. Those judges would also be free of any subconscious pressure from their chief or colleagues.
One must also ask: when do the accused’s lawyers get to cross-examine the witnesses against her and present evidence on her side? Along with an impartial adjudicator, that seems the essence of fairness in our system. In the words of Professor Wigmore, “Cross-examination is the greatest legal engine ever invented for the discovery of truth.”
At this point, only one thing is clear: Chief Judge Moore and Judge Newman flatly disagree about the most basic and critical facts about the alleged impairments. Each accuses the other of having the facts all wrong. I do not know the true facts. No way I could.
The Broader Impact
What I care most about, however, are the court itself as an important institution and the negative effects on parties with pending and upcoming cases. This unseemly, bitter, and public controversy is, I believe, hurting the court and alarming companies, innovators, veterans, government employees, and others with business before the court. As the infighting grinds on and as emotions continue to flare on each side, it could ultimately besmirch the entire Judiciary.
The controversy has been featured in the legal press on numerous occasions, and has even found its way, not surprisingly, into the Washington Post. Additional press attention can be expected. By all accounts, the court appears in serious disarray.
Speaking from experience, an internal court matter such as this is almost certainly having an impact on the adjudication of cases before the court. Even if not, it undermines the public’s confidence in the court. Our judicial system falls apart if the public does not trust the process and the judges.
Throughout the spring, Judge Moore and the Special Committee repeatedly added charges and factual allegations, also barring Judge Newman from hearing new cases.
In turn, Judge Newman stepped up her response by filing her lawsuit in federal court in Washington, D.C. Then, on June 27, her lawyers sought a preliminary injunction to stop the investigation, which they argue has no factual or legal basis and violates due process and the applicable statute in disability and misconduct.
Reports now indicate that Judge Newman, at her own volition, underwent an independent neurological examination (by Ted L. Rothstein, MD—a board-certified neurologist and a full Professor of Neurology and Rehabilitation Medicine at the George Washington University School of Medicine & Health Sciences). According to those reports, Judge Newman was found to be medically and mentally fit to “participate in court proceedings.”
That reporting comports with the clarity of her talk at the Fordham conference in April which I, among many others, heard. Oral argument recordings during the period under investigation do not seem to indicate any perceptible change in her typical approach to questioning advocates. Others who have talked with her privately say much the same. These reports only deepen the chasm between the two sides—further calling out for a neutral arbiter of the dispute.
Several people have called me saying they are aghast at how this matter is being handled by the Chief and the court. But practically no one is willing to say so publicly. And of course, we don’t know the facts, so the Chief Judge’s allegations may well be adequately supported by internal evidence.
Better Options
At any point, the matter could have been transferred to the council of another circuit court. It still can be. Judge Newman’s case seems to be a textbook example warranting transfer. Her district court motion asserts that, since 2006, “every single complaint of misconduct against a circuit judge that was not summarily dismissed has been transferred to another circuit’s judicial council for investigation.”
Transfer would allow judges in another circuit, say the council of the D.C. Circuit or the Fourth Circuit, to review the allegations, pursue the investigation, and conduct factfinding, all without being tainted as factual witnesses about the alleged impairment and without being swayed by inherent and subconscious personal biases.
The matter could theoretically be resolved by some neutral person, perhaps a mediator. After all, judges routinely order litigants to proceed through mediation. While that would require the consent of both sides, which has appeared unlikely to this point, a development in the district court action may be a ray of light. On Thursday, July 6, U.S. District Judge Christopher Cooper (who was assigned the district court case) recognized that the dispute “is obviously of great sensitivity as well as importance to both the Federal Circuit bar and the public in the courts more generally.” According to reporting, Judge Cooper remarked that “this case really cries out for some type of mediation.”
If the Federal Circuit Judicial Council remains steadfast in not requesting transfer to another circuit, perhaps Chief Justice Roberts, the Judicial Conference’s conduct committee, or the Judicial Conference itself could step in—to avoid further reputational damage to the judiciary and to minimize the concerns of litigants.
No one questions the responsibility of a court to police itself, if it can. But when, as here, that involves a conflict and the internal process appears to be failing, another path should be pursued.
Time stops for no man or woman, and we all live with certain inevitabilities. Not all, but some of us will have the good fortune to be blessed with clarity of mind through the end. No one, for instance, ever reasonably accused Justice Ginsburg of being mentally unfit to remain on the bench, despite her declining physical stature. Perhaps that is true here.
Let’s End This to Save the Court
The most important point, ultimately, is that the warring parties seem stuck on a path of mutually destructive and seemingly endless struggle. There is also the issue of procedural fairness to Judge Newman. At this point, transferring the investigation to the judicial council of a different circuit court seems most preferrable, as opposed to continuing the horrific battle now raging in which everyone involved is getting further tarnished, including the court itself.
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Author: viperagp
