Something rare is happening right now in the Federal Circuit, the circuit in Washington, D.C., responsible for patent litigation. Several things, in fact. First, Judge Pauline Newman, age 95, is under investigation pursuant to the Judicial Conduct and Disability Act, the federal law that governs judicial discipline. The Judicial Council of the Federal Circuit has alleged that Newman may suffer from a disability that precludes her from efficiently exercising her judicial duties. Second, several orders regarding this matter are public. And now, Newman is suing her judiciary colleagues, including Chief Judge Kimberly Moore, who is her boss, and the judge leading the investigation into her health.
The case is emblematic of larger issues in our federal judiciary and beyond. In all three branches of government, questions around whether leaders are serving well beyond their capacity to serve the people have only grown more dramatic in recent years. This problem in the federal judiciary is exacerbated by the fact that judges enjoy lifetime tenure. Some Article 3 federal judges with life tenure do take senior status in their later years, continuing to hear a reduced caseload. Occasionally judges retire to pursue careers as law firm partners, mediators, or arbitrators. Sadly, too many judges choose to retain their judgeship to the point that they will die in office. Modern medicine may enable us to live longer, healthier lives. Yet it is clear that some judges—who are among the most powerful people in our constitutional system—insist on remaining on the bench until long after they are fit to handle the rigors of federal judicial service. Judge Newman’s story is a very dramatic recent example of a dangerous ongoing trend.
In March, Federal Circuit Chief Judge Moore confirmed the investigation into Newman’s health, detailing various issues. Judge Newman heard fewer cases than her colleagues between 2021 and 2023. She issued fewer opinions. She incurred substantial delays in resolving cases. Once these matters were reassigned to other judges, they were handled swiftly. Moore convened a special committee to investigate further, pursuant to the federal judiciary rules for proceedings related to judicial conduct and judicial disability. These rules define a “disability” as “a temporary or permanent impairment, physical or mental, rendering a judge unable to discharge the duties of their judicial office.” Pursuant to Rule 13(a), medical testing can be recommended. A judge’s noncompliance can be considered evidence of misconduct.
In April, the special committee concluded that there is “a reasonable basis to conclude [Judge Newman] might suffer a disability that interferes with her ability to perform the responsibilities of her office.” The committee recommended that Newman undergo medical testing and evaluation. The order also indicated that Newman had thus far refused to accept service in the proceedings against her.
Then, earlier this month, Newman filed a complaint in the U.S. District Court for the District of Columbia, alleging various constitutional violations under the First, Fourth, and Fifth Amendments, dramatically escalating the conflict and showing how determined she is to cling to office. Once again, Newman also objected to the requested medical evaluation and testing. This fight is not going away with the lawsuit, even if Newman is able to temporarily hold on to her place on the bench.
This week, Moore issued an order reiterating the committee’s multiple requests that Newman agree to neurological testing and evaluation, as well as turn over medical records related to the inquiry, in order to determine whether Newman suffers from a cognitive impairment that precludes her from exercising her judicial duties. The order also reiterates numerous troubling details about Newman’s conduct between 2021 and 2023, including: 1) allegations that she mistreated law clerks and violated the confidentiality provision of the employee dispute resolution plan; 2) substantial delays in issuing opinions and resolving cases, as well as comparatively lower overall productivity than her colleagues; and 3) evidence of a cognitive impairment, including challenges handling basic tasks and remembering information, and appearing confused (in at least one instance, Newman claimed during a proceeding that “hackers” had invaded her devices). The order also responded to Newman’s claims that her productivity has not declined, clarifying that the court’s internal data provides a more accurate picture of overall productivity than public records. The committee again ordered Newman to participate in neurological evaluation and testing, which the committee is authorized to do under the Judicial Conduct and Disability Act of 1980.
While judicial misconduct investigations rarely become public, we do occasionally hear about judges stepping down amid misconduct investigations. Much less attention is given to the equally important disability provision, which, when implemented correctly, should ensure that judges who are no longer fit to serve do not endanger the public by continuing to hear cases. Yet neither the U.S. Constitution nor judiciary policies and procedures nor existing federal laws have fully grappled with the issue of elder judges serving beyond when they should and refusing to give up their black robes. When some elder judges died in office, questions were raised about their health and capacity to serve, including the late Justice Ruth Bader Ginsburg, who many argued should have retired several years before her death. However, rarely have a judge’s poor health and fitness for judicial services been so publicly disputed.
Legal scholars have long argued that the intent of life tenure for Article 3 federal judges was to ensure unbiased judicial decision-making, uninfluenced by partisan considerations like reelection or reappointment. Yet recent research suggests that, in fact, federal judges retire or take senior status in strategically partisan ways.
The consequences can be devastating. Federal judges render opinions every day that affect the livelihoods and liberty of litigants. Delayed rulings can be particularly harmful to litigants—whether individuals or businesses—who rarely get a window into the behind-the-scenes machinations of the courts.
It’s important to note that Newman is not an example of an employee seeking reasonable disability accommodations—in fact, the judiciary is exempt from such accommodations, including Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Rehabilitation Act. Rather, we are witnessing, on the one hand, a judge’s ongoing ethical lapses, jeopardizing public trust and refusing to acknowledge that it is time to step down, and on the other, laudable efforts by Newman’s colleagues to enforce the Judicial Conduct and Disability Act and protect the public from a judge who is no longer able to perform her judicial duties.
This controversy in the Federal Circuit opens the door for several potential areas of judiciary reform. First, term limits—thereby ensuring that both political parties have the opportunity to replenish the bench with fresh blood and fresh ideas on a regular basis. Second, a mandatory retirement age, similar to those enforced in more than 30 states and the District of Columbia for local judges. Third, regular medical evaluations for all judges.
The federal judiciary should ensure reasonable accommodations for disabled judges who are otherwise fit to serve—just like it should ensure reasonable accommodations for law clerks and judiciary employees who seek them. However, for judges like Newman, who has enjoyed a lengthy and storied judicial career, but who now appears unable to efficiently exercise her judicial duties, her interest in remaining a judge must be weighed against the interests of the numerous litigants who appear before the court. These litigants have been and will continue to be irreparably harmed by delayed rulings and court backlog. We must also consider the harm that is caused when those in the next generation of aspiring judges are indefinitely delayed from entering federal judicial service.
In the immediate term, the Federal Circuit Judicial Council must ensure that no further litigants are harmed by Newman’s refusal to acknowledge her own fallibilities. Newman’s cases can be reassigned until the investigation concludes. However, should Newman refuse to participate in the probe into her health, and should she refuse to step down, she can only be removed by congressional impeachment, which is exceedingly rare. Judge Newman’s refusal to retire—and lack of effective processes to remove her—speak to a larger lack of accountability in the judiciary that has garnered additional attention recently, as well as a lack of public trust in the third branch. In the long term, both federal judiciary leadership and Congress must develop procedures to ensure that judges who can no longer handle the rigors of federal judicial service do not remain on the bench well beyond their capacity to serve.
