A 95-year-old judge
Despite a light workload and no new cases being assigned since February, the Reagan appointee has made no progress in clearing his case backlog, according to the council’s order, which includes all active judges on the US appeals court. Federal Circuit.
“Given the current situation, the council has decided not to grant Judge Newman new case assignments,” the council said.
The order is the latest development in an unusually public employment dispute in the judiciary, drawing new attention to the consequences of lifetime appointments of federal judges.
The committee most recently ordered Newman’s attorney to submit a brief by July 5 detailing her noncompliance with the requested health examinations and disclosure of medical records.
Newman has been temporarily barred from hearing new cases since the investigation began in March. She was previously excluded from the April oral argument schedule issued in February because “her backlog violated Federal Circuit clerical procedures,” the order said. Under those procedures, a judge may not receive new cases if there are four or more outstanding opinions that are more than six months old or two or more holdover opinions that are more than a year old.
Newman responded to the investigation by suing her colleagues in D.C. Federal District Court, alleging that her health and performance were unfairly targeted. That case is ongoing.
Her attorney, the New Civil Liberties Alliance, argued that she is an active participant in the court and that she regularly writes dissents from majority opinions, which should count toward her total written opinions.
The Judicial Council order “shows that no due process took place,” NCLA attorney and former Newman clerk Greg Dolin told Bloomberg Law on Monday. “I am truly saddened to read such an order from a court I clerk for, a court I hold in high esteem.”
Correspondence between the court and Newman’s attorney escalated ahead of Monday’s order.
In a previously reported May 16 court motion, Newman was asked to indicate whether a neurologist and neuropsychologist would agree to evaluate her and to release records about her “mental acuity” and stamina. Newman did not meet that deadline, and Moore ultimately expanded the scope of the judicial fitness investigation to include her noncompliance as a potential cause of misconduct, documents released Monday show.
On May 20, Dolin asked for a June 8 deadline for Newman’s response in a letter released by the court. The Judicial Inquiry Committee rejected the entire request, but granted a brief extension till May 26.
When Dolin responded on Newman’s behalf, he offered to release her records and make her available for medical screening, according to a May 25 letter. The next day, Moore interpreted the offer as a statement that Newman would not submit to the evaluation, and expanded the inquiry into Newman’s fitness to include her noncompliance.
According to Dolin, Newman agreed to cooperate in the process and submit to the evaluation if she met her conditions. “We’re not trying to bargain,” he told Bloomberg Law. “We’re trying to protect due process.”
A few days later, on June 1, a three-judge special committee of the Judicial Council issued an order narrowing the focus of the inquiry from a disability inquiry to whether Newman’s failure to comply with the tests and documents requested amounted to misconduct. The noncompliance investigation could proceed without a hearing requiring Newman’s participation, the committee noted.
“The committee has strong evidence to indicate such a defect,” the order said. “But in order to make a formal finding of impairment, the committee believes it is important to obtain prescribed input from independent medical professionals after actually examining Judge Newman.”
The order calls for a July 5 brief and a July 13 secret hearing in which Newman’s attorney will be called to testify about her conduct.
The case is In re Complaint No. 23-90015, Jud. Council Fed. Sir., Caseload Order filed 6/5/23.