The Battle over Judge Newman’s Unconstitutional “Stealth Impeachment” Continues
I’ve previously blogged about the “stealth impeachment” of Judge Pauline Newman of the Federal Circuit. This post reviews Judge Newman’s recently filed reply brief and the Federal Circuit’s recent hiring of adversarial experts against Judge Newman. The whole process continues to raise troubling constitutional questions.
Some quick background: Judge Newman has been “temporarily” suspended by the Federal Circuit’s Judicial Council due to her alleged failure to cooperate with a Special Committee of the Circuit. The Committee was investigating Judge Newman’s alleged declining mental capacities. Judge Newman has sought federal judicial review of whether her indefinite suspension violates her constitutional rights. But a judge on the D.C. District Court dismissed many of her claims as not subject to judicial review and rejected her facial constitutional challenges to the Judicial Conduct and Disability Act. She has appealed to the D.C. Circuit.
In December, I joined former judges Susan Braden, Janice Rogers Brown, Paul Michel, Randall Rader, and Thomas Vanaskie in an amicus brief (written by experienced appellate lawyer Richard Samp) urging the D.C. Circuit to direct that Judge Newman’s claims be reviewed on their merits. And now, just last week, Judge Newman herself weighed in with a powerful reply to the Judicial Council’s position that it can simply suspend her from her judicial duties under the Judicial Conduct and Disability Act, at least so long as she continues to draw her salary. Here is Judge Newman’s response (some citations omitted):
Article III does require that duly-appointed judges exercise “judicial power,” which is “the power to make authoritative and final judgments in individual cases.” William Baude, The Judgment Power, 96 Geo. L.J. 1807, 1815 (2008).
[The Judicial Council’s] argument that a judge “subject to a temporary suspension who still holds her commission and is still entitled to draw her salary has not been dismissed from her office” must fail. First, entitlement to salary is a guarantee that is separate and apart from the guarantee that office will be held “during good Behaviour.” Nat’l Comm’n on Judicial Discipline and Removal, Report, 152 F.R.D. 265, 287 (1993). Second, there is nothing “temporary” about Judge Newman’s suspension. This is recognized even by neutral commentators. See Dennis Crouch, Is Google Simply Asking for More Efficient Infringement?, Patently-O (Jan.29, 2025), https://tinyurl.com/5bushudm (“I put ‘temp’ in scare quotes because it appears that [Judge Newman’s] suspension is—in fact—permanent.”). And third, having a framed commission on the wall while being unable to exercise any powers granted by that very commission, is meaningless. Judge Newman’s commission, like commissions of Defendants-Appellees and of every judge of this Court, “empower[s] her to execute and fulfil the duties of [her] Office … and to Hold the said Office with all the powers … to the same of right appertaining ….” Judge Newman’s suspension from her judicial office deprived her of the effects of the very commission upon which Defendants-Appellees rely as evidence that she continues to hold office. While it is true that as a literal matter Judge Newman’s seat on the Court is not vacant, the Constitution “deals with substance, not shadows.” Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325 (1867). A functional removal runs af
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