It has been a remarkable feature of the Federal Circuit's suspension of the Honorable Judge Pauline Newman that few have taken a stand publicly on the propriety of the suspension (something the Judge herself recently mentioned; see "An American (and Entirely Unnecessary) Tragedy"). That has now changed, with the D.C. Circuit Court of Appeals receiving amicus briefs from four separate groups submitted in support of Judge Newman's challenge. These amici ask the Court to reverse the District Court's dismissal of her lawsuit challenging the Judicial Council's actions on, inter alia, Article III and due process grounds. Another one of these amicus briefs is discussed herein.
The amici here include:
• The Manhattan Institute, a "nonprofit policy research foundation whose mission is to develop and disseminate ideas that foster individual responsibility and agency across multiple dimensions."
• Dean Pinkert, an "international trade and human rights consultant, whose projects range from labor practices in U.S.-facing supply chains to trade remedies and intellectual property."
• Steve C. Charnovitz, who is on the faculty of George Washington University Law School and who "writes on international trade, foreign relations law, and environmental sustainability."
• Rochelle Dreyfuss, emerita law professor at the NYU School of Law whose scholarship focused on patent law and the Federal Circuit.
• Brian Dean Abramson, "a leading expert on vaccine law."
• Andrew C. Michaels, associate professor of law at the University of Houston Law Center who specializes in intellectual property law.
• Hugh Hansen, emeritus professor of law at Fordham Law School.
• Howard Knopf, a retired Canadian lawyer.
These amici assert that the legitimacy of the judiciary "relies on its ability to resolve disputes impartially and maintain public confidence in its integrity." In instances such as the one before the Court, the law contains "structural safeguards," like transferring a case to a different circuit to "ensure that disciplinary proceedings are both impartial and perceived as fair," the latter effect being "essential." These amici characterize the allegations raised against Judge Newman to be "precisely the type of circumstances that demand such precautions." The manner in which these proceedings have been conducted in this case "create a risk of impropriety or the appearance of bias if the case were to remain within the circuit," amici assert.
The brief's first argument is that "history and case law suggest" that an accused judge not be tried by her colleagues on the court, which is particularly the case where, as here, some of these colleagues are the judge's accusers. The brief reminds the Court that until recent times the only mechanism for disciplining a federal judge was impeachment, citing United States v. Claiborne, 727 F.2d 842, 845 (9th Cir. 1984), and McBryde v. Comm. to Rev. Cir. Council Conduct & Disability Ords. of Jud. Conf. of U.S., 264 F.3d 52, 66 (D.C. Cir. 2001). Amici consider there to have been "good reason" for this, inter alia, to avoid "overreach" by different branches of government against other branches (protections particularly important to the judiciary; to paraphrase Stalin, "how many divisions [of troops] do judges have"?). Being entitled to such protection depends, according to the brief, on judges deserving the benefits thereof, and entitlement depends on the judiciary's integrity remaining "beyond reproach." Because there are instances where a judge's past conduct, while not amounting to impeachable conduct needs correction, and in other instances where methods for alternative relief are necessary, as evidenced by decisions that "highlight[] how the role of the judicial council is to provide administrative remedies in the absence of judicial relief," citing Chandler v. Jud. Council of Tenth Cir. of U. S., 398 U.S. 74, 85 (1970). Enactment of the Judicial Conduct and Disability Act showed that the court had the authority to effectively discipline federal judges for "conduct unbecoming or that reflected poorly on the integrity on the institution." The Act contained provisions aimed at these protections, giving initial responsibility to the Circuit's Chief Judge. But importantly. the Act provided, as these amici see things, proceedings that are "forward-looking and not punitive," citing In re Complaints of Jud. Misconduct, 9 F.3d 1562, 1566 (U.S. Jud. Conf. 1993), and "inquisitorial and administrative" rather than "adversarial," the brief citing In re Memorandum of Decision of Jud. Conf. Comm. on Jud. Conduct & Disability, 517 F.3d 563, 567 (U.S. Jud. Conf. 2008). And one provision ensuring "good behavior" in such circumstances is moving the proceedings to another circuit.
Here the Federal Circuit has ignored these built-in safeguards, amici assert. Part of the implementation of the Act included establishment of a set of Judicial Conference Rules "designed to provide a mandatory and nationally uniform governing structure to the procedural aspects of judicial conduct and disability proceedings." These may differ from circuit to circuit according to the brief, but it is the uniformity of the rules that stand out amici argue (the brief further stating that complaints such as this one are "the rarest type"; this conclusion stems from the information contained in a report, entitled Implementation of the Judicial Conduct and Disability Act of 1980: A Report to the Chief Justice, 22 (2006) by former Justice Breyer). The brief walks through the typical procedural steps involved in evaluating a complaint against a judge, including early determinations of whether a complaint has merit and, if determined to be so the Chief Judge of the Circuit convening a special committee to further investigate (all these steps having been features of this investigation of Judge Newman). Even these early procedural steps are rare, the brief stating that "only 25 out of 1,363 complaints in 2023 being referred to a special committee" according to Complaints Against Judges, U.S. Cts. (2024). It is up to the judicial council from that circuit to decide whether to recommend public reprimand or other penalties (which can include recommending impeachment to the House of Representatives).
This is a recitation of the "ordinary course of events," according to the brief, and while it "may appear straightforward, there are structural concerns that give pause." One such concern is a recognition that "the process for judicial discipline is built on the presumption of good-faith action by the investigating judges," which is usually ("the vast majority of cases") but not always true. The need for such good faith "is a critical element because the chief judge acts as detective, prosecutor, and arbiter for the accused through the entire procedure" (statuses that Judge Newman has asserted in her complaint relating to due process deficiencies), citing McBryde. Because there is this "potential for misconceived actions against a particular judge serving on the same circuit," the Rules contain provisions for transferring the matter to another circuit, or for the Chief Judge to recuse herself as safeguards. But, the brief emphasizes, these steps are discretionary to the Chief Judge. The brief provides illustrative examples (taken from the Breyer Report) and enumerates the benefits of such safeguards. These include that "transferring cases eases internal tensions," citing In re Jud. Misconduct J.C. Nos. 03-20-90043 and 03-20-90044, 2 (Jud. Coun. Third Cir. 2021), and In re Charges of Jud. Misconduct, 769 F.3d 762, 763 (D.C. Cir. 2014). Amici also assert that such transfers "preserve[] the public trust," using to illustrate "perhaps the highest-profile such instance in modern times, [wherein] 83 judicial-misconduct complaints against D.C. Circuit Judge Brett Kavanagh were transferred from the D.C. Circuit's judicial council to the Tenth Circuit's judicial council" in In re Complaints Under the Judicial Conduct and Disability Act, Nos. 10-18-90038 through 10-18-90112 (10th Cir. Jud. Council 2022). Amici draw a comparison between these "unfounded complaints" (that were ultimately dismissed) with those against Judge Newman (the brief asserting "as those against Judge Newman should be [dismissed]"). The brief also notes the strong motivation of avoiding a perception of impropriety, citing transfer from the Ninth Circuit to the Second Circuit in a case of alleged sexual impropriety against "then-Judge Alex Kozinski in In re Complaint No. 17-90118, at 1 (2d Cir. Jud. Council Feb. 5, 2018)." The brief also notes that "transfers for independent review are common in instances where public confidence and the perception of impartiality are in jeopardy," setting forth several other instances for illustration.
The brief concludes with confirmation by retired Federal Circuit Chief Judge Paul Michel of amici's "reading of the situation" with regard to the wisdom of a circuit transfer in this case. The Chief Judge's views were set forth in an IP Watchdog article entitled Judge Newman's Suspension by the CAFC Has Marred Public Faith in the Federal Judiciary. The brief states that in this article the former Chief Judge "raises timely concerns that should be taken seriously" and takes the opportunity (and word count) to set forth these comments in detail:
Normally, one would assume the chief judge's motivations are proper: simply to protect the court and litigants before it. But the mere appearance of bias is regarded as being just as harmful to justice as actual bias. Given Judge Newman's accounts of their interactions, at least the appearance of bias against her by the chief judge is hard to dismiss. . . .
Given the chief judge's apparent animus against Judge Newman, how can she herself be regarded as an impartial adjudicator? Even the impartiality of the other judges may be questioned if, like the staff, they were perhaps fearful of adverse consequences if they failed to support the wishes of the chief judge.
No one, I suggest, can confidently untangle these diametrically opposing versions of the truth without a trial-like proceeding. And, so far, that has been repeatedly denied by all the external authorities who have looked at this case.
Finally, all should be able to agree that the disputed facts should be decided by a neutral body. Such neutrality must be beyond question for the sake of faith in the courts by litigants and the public alike. That, after all, is the basis of judicial recusals. Yet requests by Judge Newman to transfer the case to another circuit have all been rejected. That alone is troubling. . . .
Getting the facts straight always lies at the heart of doing justice. In this case, however, the relevant facts have yet to be established and verified. In its brief filed in the district court, the Federal Circuit wrote that all the disability charges were "moot", removing these charges from the district court. Yet, Judge Newman was not returned to judicial service, and she has now been "suspended" for a second year, on the same charge of "failure to cooperate."
Judges from around the country anxiously ask me regarding the actions taken against Judge Newman: "What's going on with the Federal Circuit?" Is it not time for some outside authority to intervene and to end this impasse before it further undermines the credibility of the Federal Circuit, and potentially the entire judiciary?
It should go without saying that amici here wholeheartedly agree with former Chief Judge Michel and request that the Circuit Court reverse the judgment of the district court and "render a judgment indicating a need to transfer the underlying proceedings to another circuit." This judgment "would obviate any concerns about impartiality arising from internal tensions within the Federal Circuit and begin to remedy the damage being done to the rule of law by Judge Newman's arbitrary suspension," amici assert.
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