by Dennis Crouch
The Federal Circuit’s special investigation committee recently released an order in focusing on next steps in its ongoing investigation into the conduct and capacity of Judge Newman. Although the investigation generally centers on disability and misconduct in her role as judge — the most recent order narrows the focus to the question of whether Judge Newman’s refusal to submit to medical testing constitutes misconduct that could potentially lead to her removal from the bench. The committee’s next steps will be to hold a closed-door hearing on July 13 solely on this issue. The committee appears to be tacitly admitting that its allegations of general misconduct are insufficient alone and that it cannot prove disability without a medical evaluation. Still, the committee is moving forward methodically and the order indicates that the refusal-to-cooperate is one area that it could fairly efficiently review and reach a conclusion sufficient to make a final recommendation to the Judicial Council, despite Judge Newman’s lack of cooperation.
Confidentiality: The court’s decision to refuse Judge Newman’s request for a public hearing is another important aspect of this case. This decision raises questions about transparency and the public’s right to know about proceedings that could potentially impact the composition of the judiciary. The order explains the committee’s reasoning:
- The court begins with a strong presumption that all proceedings that form part of the Committee’s investigation should be confidential, as mandated by the Judicial Conduct and Disability Act of 1980 and the Rules for Judicial-Conduct and Judicial-Disability Proceedings.
- Confidentiality facilitates the investigative process and is almost universally accepted.
- Opening the argument to the public carries a grave risk of inadvertent disclosure of both witnesses’ identities and confidential details of witness statements, which could impair the investigative process.
- The court believes that a public hearing may include references to materials that have not been made public, and that discussion may disclose information that would identify witnesses or confidential details of witness statements.
- The court believes that a better approach to permitting some public transparency would be to consider releasing a redacted transcript after the argument has been completed.
- The court argues that the cases defining a right of access to trials are of limited usefulness in the context of the fundamentally different procedures of judicial disciplinary boards, which do not have a long history of openness.
If you have an aging parent or work with an aging federal judge, check out this article about the role of the soleus muscle in the calf.
“Soleus muscle stimulation resulted in an average increase in DBP of 6.1 mmHg, which could translate into a 30% or greater improvement in cognitive performance.”
link to ncbi.nlm.nih.gov
That’s why the calf has been called the second heart.
Latest wrinkle: Judge Newman passes the medical tests of neurologist Dr. Rothstein.
What next?
Calls for the same for certain other politicians?
What cards does Chief Judge Moore now have?0
A federal judicial appointment is for life. The Constitution doesn’t provide for the delegation of power to a committee to remove justices.
Your deep thinking in this subject is very impressive. My hamster salutes you.
Over the weekend a grandmaster friend of my cousin played eight games of chess against Judge Newman — simultaneously — while she was on her exercise bike (20 miles per day, at highest resistance). She beat him in every game, in less than twenty moves. Then she had a cup of coffee and wrote three dissents. Afterwards she drove my cousin’s friend 300 miles to the airport in her Porsche. It was a beautiful and memorable day!
No idea why she won’t just consent to the medical exams that are required per her employment agreement. I think she doesn’t like tests.
“medical exams that are required per her employment agreement”
You forget how many illnesses RBG had, beginning in 1997 with colon cancer, and how she was treated. Cancers, heart disease, broken ribs. Imagine if her colleagues had done the same to her!
First, this isn’t about Judge Newman’s anal polyps.
Second, RGB should have stepped down years before her death and if you weren’t such a cl ue le ss fake news-huffing dolt you’d know that RGB’s narcissism and Newman’s narcissism are related phenomena.
Related…?
How exactly?
(Is this a 6-ism?)
You deflected from the main point. If RBG’s colleagues had done the same to her, the outcry would have been immense.
Of course he deflected.
Were you really expecting anything else?
Nah.
The Federal Circuit has officially surpassed the PTAB as the most kangaroo court in America. It’s so sad that that in 20 years bad actors have trashed the U.S. civil justice system just to protect tech giants from competition.
+1
Totally off-topic, but I see this morning in Law360 that a bill has been introduced to prevent the administration from negotiating TRIPS waivers without Congressional approval. Fine and fair, as far as it goes.
Perhaps surprisingly, Rep. Issa (who is not always a friend of patentees) is among the backers of the bill. Once again, fine and fair, as far as it goes. One of Rep. Issa’s arguments in favor of the bill, however, is that “Presidents can do a great many things, [but] they cannot appropriate money to compensate for a taking of this magnitude.”
That is an intriguing point. It had never occurred to me before that a government must appropriate to pay compensation for takings. Does anyone know, is that true? Is there some fund in the federal budget that pays out compensation for takings? What happens if the fund does not receive adequate appropriations in a given year to pay all of the takings for which the federal government ends up being liable?
Also, is it a taking if—as a result of TRIPS waiver—India suspends your patent rights. The actions of the Indian government are its own. The U.S. government has not suspended your Indian patent rights (which the U.S. government cannot do, in any event), nor has it suspended your U.S. patent rights. The U.S. government’s only hook for liability here is that it is party to a treat under which the Indian government took adverse action to you. Is that enough to make the U.S. government liable to you for a “taking”? Does anyone know of a case on that point?
Double meh.
Issa was likely being colloquial and shooting from the hip.
Plus, the notion of “patents” as part of the IP give-away (as you have oft been informed) is but a minor portion.
Further still, the politics involved here will reflect the public’s desire to sprint HARD and away from the COVID era. The “need” for any draconian waivers will dissipate sharply, and thus calls to prevent such in the future will also dissipate in their urgency and force.
“…the most recent order narrows the focus to the question of whether Judge Newman’s refusal to submit to medical testing constitutes misconduct that could potentially lead to her removal from the bench.”
How would that work? Short of impeachment and “conviction” how is an Article III judge removed?
As I understand it, the CAFC has the power to sideline her permanently if the hearing finds her incapacitated. Perhaps one can quibble that this should not be described as “removal” (she would, in those circumstances, remain on the list of CAFC active service judges such that there would be no vacancy for Pres. Biden to fill and she would continue to draw her salary), but the term is not wildly off the mark. She would be a judge who never sits a panel nor writes an opinion.
I thought the end game was to force her to take senior status i.e., there would be a vacancy + de facto removal.
More generally, I agree that the proper procedure would be to make a recommendation for impeachment, not de facto removal via the Court’s own inherent(?) power.
Well, I was wrong, in any event. Here is what the statutes say:
28 U.S.C. §354(a)(1)(C) provides that “[t]he judicial council of a circuit, upon receipt of a report filed under section 353(c)… may conduct any additional investigation which it considers to be necessary… and if the complaint is not dismissed, shall take such action as is appropriate to assure the effective and expeditious administration of the business of the courts within the circuit.”
28 U.S.C. §354(a)(2)(A)(i) further provides that “[a]ction by the judicial council under paragraph (1)(C) may include… ordering that, on a temporary basis for a time certain, no further cases be assigned to the judge whose conduct is the subject of a complaint.”
In other words, contrary to what I said above in #3.1, they cannot permanently sideline her. They can only sideline her for a limited, specified amount of time. That said, when you are talking about a woman in her 90s, the distinction between “permanent” sidelining and “temporary” sidelining is probably pretty thin.
Meanwhile, 28 U.S.C. §372(b) provides that
In other words, if they certify her disability to the president, then Biden can nominate a replacement. Meanwhile, they can “temporarily” sideline her for (e.g.) two years. As I read it, they cannot keep her off en banc cases, but they can keep her off of panels, which is obviously the overwhelming majority of what the CAFC does.
“C”ouncil…
? Why hide the Fuetterer case?
Brainless Joe Biden, the guy who is unable to discharge his duties (“God save the Queen”), is going to be the one to sack Pauline Newman, who is not only still competent and has at least 30 IQ points on Joe, but who unlike Joe is honest as well?
You can’t make this stuff up.
I do not want to see Judge Newman replaced. I am merely reporting what the statute permits to happen. I am not endorsing such an outcome.
Merely….?
And now why the Adams case…?
I am merely reporting what the statute permits
That statute is obviously unconstitutional!
“j”udge…
More of the Drum propaganda “pay no attention to that man behind the curtain” Wizard of Oz tomes.
Closed door justice is no justice at all.
Since Judge Newman is willing to make her case public, so, too, should the committee.
Witnesses need to either stand up and be counted, or sit down and shut up.
+1
+1
+1
+1
+1. because we all know star chambers are just wonderful.
It always seems slimy when “confidentiality” is used to protect the investigator / secret witnesses rather than the investigatee i.e., Judge Newman should be able to waive it.
You see this kind of thing a lot university DIE tribunals.
The optics continue to worsen for Chief Judge Moore.
Everything about this case includes a healthy degree of, “Pauline, we are trying to save you from yourself and further embarrassment despite your best intentions.” So keeping this confidential, particularly in view of the (rare) past precedent, is unsurprising and keeps the details (embarrassing for J. Newman & the Fed Cir) out of the public eye for longer.
Keep in trying to spin that narrative, skyywise.
The plain facts on the ground — including eye witness testimony of those dealing with Judge Newman in person just don’t support the “cover story.”
Shorter Billy: “Yes but what about my anecdotal data!”
LOL
Even shorter Malcolm:
“Wah, anon has the better position yet again.”
> Judge Newman should be able to waive it.
This is an interesting point, but FYI, the statute does not permit Judge Newman alone to waive the confidentiality of the proceedings. Section 360(a)(3) allows the confidentiality of the proceedings to be set aside when “disclosure is authorized in writing by the judge who is the subject of the complaint and by the chief judge of the circuit, the Chief Justice, or the chairman of the standing committee established under section 331.”
This means that consent is required by Judge Newman and at least one of Chief Judge Moore, Chief Justice Roberts, or the chairperson of the Judicial Conference standing committee. Chief Judge Moore has obviously already said “no” by this order, so I suppose Judge Newman could ask one of the other two to consent to open the proceedings to the public, although it seems unlikely either of them would do so if asked given Judge Moore’s order.
Clearly, one of the two has no fear of the sunshine of a proceedings open to the public.
OC,
LR’s answer (thanks LR) only all the more points as to the bad optics are on Chief Judge Moore — in line with your post and my reply.
Secret witnesses? Has the Federal Circuit become the Spanish Inquisition? link to youtu.be The Fed Circuit was once just an embarrassment has now become a ludicrous fiasco.
However, I do recall something about the 6th Amendment and the right to confront witnesses. I think Judge Newman will be able to confront her secret witnesses especially with the Roberts Supreme Court applying the plain text of the Constitution.
Judge Newman clearly feels that her position is the far superior one. So much so that any reservations of her own personal privacy were willingly not constrained to a non-public status.
The Court action thus logically reflects that her attackers were just not so willing to have the “court of public opinion” witness the ongoings.
Which is one reason why rebuttal to the narrative that the court is acting “in Newman’s interests” need be sharp.
The VI amendment only applies in criminal cases.
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