Home
/
RELIGION & LIBERTY ONLINE
/
When a Judge Is Forced Off the Bench
When a Judge Is Forced Off the Bench
Jul 2, 2025 3:33 AM

Attempts to remove Judge Pauline Newman, a brilliant jurist but a thorn in the sides of her colleagues, are both unconstitutional and deeply unfair. The consequences if successful will prove devastating not only to her legacy but also to due process itself.

Read More…

“Bury the lead!” is certainly unusual editorial advice but possibly the only good strategy for an essay on the vagaries of the federal court system. You never want your readers to know that they might find the subject matter of your essay less than exciting. But you’re now reading the rare article on the United States Court of Appeals for the Federal Circuit that promises that this court really is interesting—or at least can be. There probably aren’t many readers who’ve even heard of it. But the court’s judges’ chambers, which overlook the White House, are now the setting of an unprecedented controversy that has prompted one of the country’s most well-respected judges to pen an equally unprecedented open letter to the Wall Street Journal criticizing her colleagues. Depending on how the controversy plays out, it could represent a significant afront to our constitutional system and the rule of law.

Depending on how you count them, there are five federal courthouses in Washington, D.C. Lawyers for Judge Pauline Newman of the Federal Circuit were just over a mile from her chambers when on June 27 of this year they filed a lawsuit in a federal trial court on her behalf against Chief Judge Kimberly Moore and two other Federal Circuit judges, seeking to have Judge Newman’s judicial duties reinstated. plaint asserts that when her efforts to convince Judge Newman to retire were unsuccessful, Chief Judge Moore then turned to administrative mechanisms outlined in the 1980 Judicial Conduct and Disability Act to deny Judge Newman who, at 96, is the oldest active judge in the entire federal judiciary, the ability to perform her judicial duties. Judge Newman has asked the district court both to reinstate her to her judicial duties and to find that the Act is, at least in part, unconstitutional.

There peting theories as to why the chief judge wants Newman off the bench. One is that Newman is “totally disabled physically, and mentally petent.” Chief Judge Moore’s order. dated March 24, 2023, claims that she has “probable cause to believe that Judge Newman’s health has left her without the capacity to perform the work of an active judge” and that her presence on the court is “prejudicial to the efficient administration of justice.” Judge Newman, however, has produced significant evidence that is readily available to the public that she is in fact fit to discharge her judicial duties. Her own physician, a George Washington University neurologist, affirms her petency for the job. And experts in plex fields that make up the Federal Circuit’s jurisdiction, including the former chief judge of the court, confirm that there has been no perceptible decline in the quality, volume, or incisiveness of Newman’s published opinions. plaints against her, Newman says, are based on “most extraordinary fabrications and exaggerations.”

Clearly, Newman is not taking any of this lying down. The dueling orders, letters, and motions pertaining to proceedings are all available on the Federal Circuit’s website. Newman has even granted interviews (here and here) to the press. She has her own theories as to why the chief judge and other colleagues want her off the court. It is possible that the chief judge wants to create an opening for a presidential appointment, but Newman—by this time at the center of a barely contained constitutional crisis—isn’t buying it.

The U.S. Court of Appeals for the Federal Circuit was created in 1982 by the merger of a few preexisting courts. It has a unique but important jurisdiction that includes most issues relating to trademarks, copyrights, and patents. This is not the venue where culture war battles play out. There are no traditional “left and right” dividing lines on this court. It is a near impossibility that the Federal Circuit would ever be faced with questions relating to civil rights. It is, rather, where judges wrestle with some of the plex and difficult legal questions in the entire field. It is a vitally important court for the protection of private property, both because of its jurisdiction over intellectual property matters and its adjudication of issues relating to government takings. Almost all the judges have training as engineers and scientists in addition to legal training. Judge Newman, the first direct appointee to the court, is no different. She graduated from New York University School of Law only pleting a Ph.D. in chemistry at Yale and spending several years as a research scientist. She holds several patents herself that date back to that time in her career. Chief Judge Moore herself is an MIT-trained engineer.

Newman believes she has e the target of her colleagues’ attention because they “are tired of being told that they’re not perfect.” Her frequent dissents demonstrate an “understanding of … law [that] conflicts with that of many of her colleagues.” Without her dissents, the workload of Federal Circuit judges would decrease by 5%.

The subject matter of most of the Federal Circuit’s docket is plex that even most attorneys have difficulty parsing it. Applying the law plex and specialized scientific, medical, and technological questions requires a level of expertise in extra-legal fields that only specialized attorneys have. And the rulings of the Federal Circuit on these questions often e the law of the land, since so few cases are ever appealed to the Supreme Court and its unique subject matter jurisdiction means that a circuit split on many of these issues is not possible. Newman has, in fact, established herself as “an intellectual powerhouse” and is the author of majority opinions in some of her field’s seminal cases. She has also provided the intellectual framework through her frequent dissents for many other seminal cases when the Federal Circuit has been overturned by the Supreme Court. One judge has even noted that “Judge Newman is particularly well-known for her insightful dissents, which have often been vindicated by the Supreme Court” when it has “adopt[ed] essentially the reasoning of [her] dissent.” The judge affirming Newman’s stature and the value of her dissents? Chief Judge Kimberly Moore.

Judge Newman concedes that her reputation is already tarnished but has resisted the pressure to retire on principle. “If the judges on a court can just vote out someone they don’t like, for whatever reason … that’s not what the nation is entitled to.” Moore has assigned herself and two other judges to mittee to investigate plaint regarding Newman’s fitness that the chief judge herself initiated. The focus of that investigation has morphed from questions about Newman’s fitness into disciplinary issues owing to Newman’s refusal ply with mittee’s order to submit to a medical evaluation, despite having submitted a report from her own physician. So, in short: Chief Judge Moore herself filed the judicial equivalent of an plaint against Judge Newman. And then Moore appointed herself to mittee that is investigating her plaint. And when Newman objected not only to the substance of plaint but to the process of investigating it as well, Moore—as prosecutor, judge, and jury—took disciplinary action against Newman by suspending her from her judicial duties “with no time limit and with little heed for the regulations and case law.”

Federal judges enjoy lifetime tenure “during good behavior.” Once appointed by the president and confirmed by the Senate, these judges can only be removed from office via impeachment by Congress. This system was devised to insulate judges from political or popular influence. In 1937, frustrated with life-tenured Supreme Court justices standing in the way of New Deal legislation, President Franklin D. Roosevelt proposed a court-packing plan that would place justices on the court who would be more receptive to his political project. A similar scheme was floated again in 2021 as progressives anticipated the vulnerability of decisions key to political priorities like Roe v. Wade and Regents of the University of California v. Bakke, both of which have subsequently been overturned. The rule of law depends on the stability of the justice system, and the stability of the justice system depends on constancy and the apolitical nature of the courts. This is why it is not easy to remove a federal judge or to subject him or her to the political pressures that elected officials endure (and often apply).

No matter the motivation behind the actions of Judge Newman’s colleagues on the Federal Circuit, they have certainly denied her any semblance of due process. Potential jurors are excluded from juries when they have personal knowledge of events relevant to the trial—an eyewitness to a crime would never be allowed to serve as a juror in the prosecution of one accused of perpetrating it. And no person standing to lose or gain from a particular e of a trial could serve, either. Yet the members of the judicial council of the Federal Circuit sit like jurors determining Judge Newman’s fate despite clear conflicts that would justify excluding them from a jury sitting to consider a similar case. They have also done violence to the notion of the separation of powers spelled out in the U.S. Constitution. It is only Congress that can remove a federal judge from office through its impeachment power.

The independence of the judiciary is an innovation of the American constitutional order and has proved to be a largely effective safeguard for liberty. The system is not without flaws, but the judiciary has endured as an apolitical institution. The Constitution assigns distinct responsibility to two political actors—the president and senators—for the makeup of the federal judiciary. The fact that their elections almost always involve the discussion of judicial appointments is proof that at least the formal structure of the system has been preserved. The attempts to sidestep it through court-packing have been defeated. But if judges themselves can exert the type of pressure that has been placed on Judge Newman, the system will promised.

Despite procedural and due process concerns, the actions of the chief judge of the Federal Circuit have proceeded under color of statutory law, which Newman convincingly argues is unconstitutional. Newman’s service has been exemplary, and she is universally respected. The mark that this leaves on her record is tragic. But it may very well be that the greatest debt the nation owes to her is that she has resisted an unfair and (likely) unconstitutional effort to exclude her from office. We should all hope that the courts or Congress vindicate her—not only for the sake of justice but also because in so doing they will be vindicating and preserving our constitutional order and the rule of law.

Comments
Welcome to mreligion comments! Please keep conversations courteous and on-topic. To fosterproductive and respectful conversations, you may see comments from our Community Managers.
Sign up to post
Sort by
Show More Comments
RELIGION & LIBERTY ONLINE
Audio: Kishore Jayabalan With Al Kresta on Laudato Si, Capitalism, and Catholicism
Acton University 2015 is about to get underway at DeVos Place in Grand Rapids, Michigan, and our friend Al Kresta has already taken up residence on the gallery overlook level for his week ofKresta in the Afternoonremote broadcasts. His first guest from Acton University was our own Kishore Jayabalan, director of Istituto Acton in Rome, who sat down for a twenty minute discussion of Pope Francis, Laudeto Si, and patibility of capitalism with Christianity. The full interview is available via...
Kishore Jayabalan: Initial Thoughts on Encyclical Leak
Kishore Jayabalan, Director of Istituto Acton in Rome: “The fact that this draft has been leaked well in advance of the encyclical’s official release shows the great interest in what Pope Francis has to say about the environment. To be sure, he will frame the issues in Christian terms, as the pope must always do. My concern is that he will blame the market economy for basically all our environmental degradation and neglect the very important role private property and...
Rev. Sirico: Encyclical Exposes Political Rifts
Speaking to the New York Times, Rev. Robert A. Sirico, Acton Institute president and co-founder, addresses the potential political fallout from the Pope’s encyclical statements on climate change: From the moment he steps into that chamber and talks about climate change, it’s going to be taken as a political statement,” said the Rev. Robert Sirico, executive director of the Acton Institute for the Study of Religion and Liberty, a policy group that endorses free-market economics. “For the conservatives, it’s going...
Have Christian Female Entrepreneurs Changed The World?
Christina M. Weber says that Christian women have been trail-blazers in showing us how to balance family life, work and worship. In the 20th century, Weber says that political ideologies tried to break down family life. Marxists munists promoted disconnection between children and their parents with patible work schedules. They also destabilized marriages with the encouragement of promiscuity and lust. The agenda—dependence on the state above family and God — fueled the economic and political goals of their leaders. But...
Michael Miller: First Reaction to Leaked Encyclical Draft
Michael Matheson Miller, Research Fellow and Director of Acton Media at the Acton Institute: “Pope Francis has spoken consistently about the need to end exclusion for the world’s poor. Since the environmental movement often neglects the challenges of the poor, it will be interesting to see how the encyclical addresses the call to environmental stewardship in the context of poverty and economic development. “ ...
Why the Price System is One of God’s Artworks
At an auction in2007Andreas Gursky turned 99 cents into $3.34 million. Well, sort of. Perhaps it’d be more accurate to say he turned99 Cent II Diptychon, a photograph depicting an interior of a supermarket, into a few million. At the time this was the most expensive photograph in the world. Even more amazing is that this wasthe third print of the same image that had sold for millions. Two others sold in 2006, one for $2.25 million and another for...
Video: Samuel Gregg on Truth, Reason, and Equality at Acton University 2015
Acton University 2015 got underway last night with an opening plenary address by Dr. Samuel Gregg on the topic of Truth, Reason and Equality. Gregg emphasized that the pursuit of authentic equality must be rooted in a deep respect for truth, not in “sentimental humanitarianism.” We’re pleased to share his address with you via the video player below. ...
Samuel Gregg On Pope Francis’ American Visit
Today in The Federalist, Acton director of research Samuel Gregg looks ahead to Pope Francis’ American visit. Gregg, of course, cannot predict the future, but he can respond to others’ speculation; in particular, he takes issue with Jeffrey Sachs. Sachs, in America magazine argued that another old-style Jesuit—Pope Francis—will ing to an America uninterested in virtue, mired in consumerism, and fast ing a hyper-individualistic society obsessed with rights. Turning on the television soon confirms there’s some truth in Sachs’ analysis....
Will That College Diploma Get You A Job?
Does having a college diploma mean you are ready for the workforce? It depends on who you ask. If you ask those involved with higher education, almost 75 percent say, “yes.” However, both students and employers are less sure: less than 60 percent of those groups feel college grads are well-prepared for a professional career. What are employers looking for, if not a diploma? They want proficiency in four key munication, collaboration, creativity and critical thinking. With colleges and universities...
How American Catholics View Pope Francis and Global Warming
Since Pope Francis will be addressing climate change later this week the Pew Research Center has released a survey showing what American Catholics think about boththe pontiff and global warming. Not surprisingly, the surveyfound that global warming is a “highly politicized issue that sharply divides American Catholics, like the U.S. public as a whole, mainly along political party lines.” About seven-in-ten U.S. Catholics (71 percent) believe the planet is getting warmer, and nearly half (47 percent) attribute itto human causes....
Related Classification
Copyright 2023-2025 - www.mreligion.com All Rights Reserved