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Home High profile The lawyer for the oldest federal judge criticized the 'haphazard allegations' about her declining mental health, comparing it to reading a Chinese menu

The lawyer for the oldest federal judge criticized the 'haphazard allegations' about her declining mental health, comparing it to reading a Chinese menu

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An attorney for the 96-year-0ld federal judge who refused to cooperate with an investigation into complaints about her diminishing mental capacity told a court that his client “does not need to meet any performance metrics to keep her job,” and should be allowed to stay on the bench despite problematic findings about her behavior. In […]

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U.S. Circuit Judge Pauline Newman, 96, was suspended from hearing cases after the Judicial Council of the Federal Circuit unanimously found her refusal to undergo a mental examination was improper. She was the oldest federal judge still on the bench until the council’s order. (Screengrab via YouTube).

An attorney for the 96-year-old federal judge who declined to cooperate with an investigation into complaints about her declining mental capacity told a court that his client shouldn't have to meet performance metrics to keep her job and should be allowed to remain on the bench despite troubling findings about her behavior.

In a new filing On Friday, Newman’s lawyer, Greg Dolin, criticized his client’s judicial colleagues for violating the Fourth Amendment by investigating Newman without a warrant. In the brief, Dolin said his client’s fellow judges engaged in a “pattern of harassment” against the nonagenarian.

U.S. Circuit Judge Pauline Newman, currently the oldest judge on the federal bench, was appointed by Ronald Reagan in 1984. Newman served for four decades on the U.S. Court of Appeals for the Federal Circuit until her health was called into question when colleagues raised concerns over her failure to meet deadlines and numerous examples of alarming behavior. Newman was suspended by the Committee on Judicial Conduct and Disability in September 2023 after she refused to cooperate with an investigation into her mental capacity and that suspension was unanimously upheld in February.

Based on input from those around Newman, investigators ultimately found “overwhelming evidence” of Newman’s memory loss, lack of comprehension, and confusion, and said the judge was often, “frustrated, agitated, belligerent, and hostile towards court staff.” As a result, Newman was given no new cases over which to preside.

In response, the judge filed a federal lawsuit against Chief Circuit Judge Kimberly A. Moore and all the other Federal Circuit judges on the committee. Newman was represented in the lawsuit by New Civil Liberties Alliance (NCLA), a public-interest law firm that focuses on the “administrative state.”

U.S. District Judge Christopher Cooper dismissed most of the allegations Newman made in her lawsuit against her colleagues in February, on the grounds that applicable precedents “consistently affirmed the judiciary’s authority to police itself.” The Judicial Council moved to dismiss those remaining claims and Newman filed a responsive motion Friday in which her attorney argued that because his client is a judge, “there is an obvious need” to distinguish her from “mere employees,” who are not protected by lifetime tenure. Further, he said, “medical or neurological testing” is not a “routine feature” of serving as federal judge.

Dolin drew the striking comparison between ordinary employment rules and those he says apply to his client:

Unlike most employees who can be terminated for things like inefficiency or insubordination, by virtue of her lifetime appointed office, Judge Newman does not have a supervisor and does not need to meet any performance metrics to keep her job. Congress alone has the power to remove her.

“They are removable only by the Senate, not by a supervisor who might search their offices or subject them to medical testing, and not by their circuit’s judicial council,” Dolin argued of judges, adding that those limitations are true even if a judge violates the law or cannot carry out judicial functions.

Dolin also disagreed with the content of the official findings against Newman. He said they seemed random and inconsistent, like a Chinese menu with Defendants making and withdrawing allegations against Newman.

Furthermore, Dolin argued that Newman had not been lacking in any clear way.

“Defendants have not been able to point to a single opinion (whether majority, concurring, or dissenting) that was not well-written or otherwise fell below any conceivable standard of judicial craftsmanship,” he argued. “Nor have they pointed to any behavior that Judge Newman may have exhibited on the bench or in conference that indicates (or would even cause one to suspect) an inability to perform the functions of judicial office.”

Prior to the Judicial Panel’s suspension, investigators conducted over 20 interviews with court staff about Newman’s behavior. The underlying order against Newman said that over the two preceding years, “With no rational reason — other than frustration over her own confusion — Judge Newman has threatened to have staff arrested, forcibly removed from the building, and fired.”

It also said that Newman “accused staff of trickery, deceit, acting as her adversary, stealing her computer, stealing her files, and depriving her of secretarial support,” and that staff described Newman’s behavior as “aggressive, angry, combative, and intimidating,” “bizarre and unnecessarily hostile,” “agitated, belligerent, and demonstratively angry,” and “ranting, rambling, and paranoid.”

Dolin argued that any health issues Newman may have faced do not render her “disabled” — and that even if she were disabled, she could still perform her duties. He raised the examples of Judge David Tatel of the D.C. Circuit who is blind, Judge Ronald Gould of the U.S. Court of Appeals for the Ninth Circuit, who was diagnosed with multiple sclerosis, and Supreme Court Justices William Rehnquist and Ruth Bader Ginsburg, who served on the bench despite their “multiple ailments.”

“Effectiveness,” Dolin summed up, “is in the eye of the beholder.

“In this country, anyone is free to ‘investigate’ anyone for any reason and on any topic,” said Dolin, noting that the real issue is whether Newman’s colleagues can compel her to turn over private documents absent a warrant, then sanction her for refusing to cooperate.

In an email to Law&Crime Monday, Dolin said:

“The stealth impeachment process launched against Judge Newman is based on unconstitutionally vague and arbitrary criteria that easily can be, and in this case were, manipulated to achieve pre-determined goals.  We urge the District Court to recognize that the statute authorizing such standardless proceedings and demanding compliance on pain of unconstitutional removal from the bench is a mortal threat to the crown jewel of American democracy—the independence of the federal judges.”

Editor’s note: This piece was updated to include comment from counsel.

 
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