Courts

A Lifetime-Appointed Judge Was Accused Of Not Being Able To Do Her Job. She Brought Receipts.

Respect to anyone who loves their job enough to fight against taking a lessened work load.

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gavel scalesFunny thing about giving judges lifetime appointments. They can live a long time. And while many of us dream of retirement — I don’t want to have to work a day past 43 — some of us are blessed with a special neurosis called “actually enjoying our jobs.” There are times when a lifetime appointee’s retirement would be strategic toward some political end (Ginsburg and Breyer come to mind). Encouraging retirement can make sense if, as a result of their age, the judge can no longer carry out the obligations their position requires. Judge Pauline Newman, 96, does not think that she falls in this category. Her colleagues think otherwise. From Bloomberg Law:

Federal Circuit Chief Judge Kimberly Moore and two other judges had sat down Newman, the oldest US federal judge, to explain why she should take senior status after almost 40 years on the bench. That would allow her to still hear some cases but at a reduced workload.

Were she to take senior status, there’s no clue how many cases she’d be allowed to decide on. If a judge’s health issue means that they forget the important facts of a case, ignore sentencing guidelines they are required to follow, or beyond all reason grants a Rule 29 motion that lets Trump walk away a free man, there is a clear sign that their mental capacities have been compromised and removal from the bench would be in order. Take Chief Justice Roberts, for example. He’s had some health issues that are concerning for his personal life, but they’ve had no noticeable — and therefore relevant — impact on his work as a justice. There is the issue of transparency and informing the public about it when someone gets hurt or compromised, but that is not the case here. And Judge Newman has gone above and beyond on that front. At first, and understandably so, the accusations that appeared backed up with goose egg as proof were met in kind.

In case documents, Moore and other judges contend that Newman fainted following an oral argument session, suffered a heart attack, and underwent stent surgery—all allegedly signs she wasn’t physically able to stay on the bench. The documents cite testimony from court employees, which Newman called the “most extraordinary fabrications and exaggerations.”

“I thought, ‘Where’s the burden here? If I haven’t had a heart attack, how could my medical records show what didn’t happen?” Newman said. “I’ve been going regularly to the doctor about every six months, and we take blood tests and so on. To prove that something didn’t happen—how do you do that?”

She, of course, is right. It is an unfair burden to demand that someone prove a negative. There’s a popular thought experiment named Russell’s Teapot that illustrates the phenomenon. I would have considered it to be good enough form for her to reply-all her colleagues this XKCD comic about the burden of proof as a polite up yours, but Judge Newman clearly has more tact than I. Instead, she submitted an evaluation and did a great job of avoiding another bad form of argument from her detractors: moving goal posts.

To shut up the opposition, Newman and her lawyers summited an examination from a neurologist from George Washington University School of Medicine & Health Sciences. They found “no significant cognitive deficits.”  That’s fancy talk for nothing is wrong with Newman and she can do her job like she’s been saying she could. Hopefully this will quell her coworker’s suspicions. The evaluation draws a line in the sand — either they accept it as such or they continue to move goal posts and require second or third opinions, come up with new ailments, and the like. She thinks that the real reason this is happening is because of her many dissenting opinions. Nobody wakes up happy to deal with contrarians, but that’s part and parcel of being a judge that is part of a panel. People will dissent. Boo-hoo. But as far as age should go, Aaliyah said it best — age ain’t nothing but a number.

Judge, 96, Mourns Tarnished Legacy While Saying She Won’t Leave [Bloomberg Law]

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Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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