Federal Judge, 95, Files Lawsuit To Thwart Competency Probe
Judge Pauline Newman turns the table on the U.S. District Court of Appeals for the Federal Circuit in Washington, D.C., claiming it has violated her Constitutional rights.
Judge Pauline Newman is not going gently into that good night.
She filed a lawsuit last week against Chief Circuit Judge Kimberly A. Moore and the Judicial Council of the Federal Circuit, which hears complaints of judicial misconduct and/or disability, in an attempt to thwart forced retirement.
The case raises obvious questions about age discrimination.
The federal judiciary has interpreted Article III, Section One, of the U.S. Constitution to grant federal judges lifetime tenure during “good behavior.” Judge Newman has not misbehaved in the traditional sense of the word and aging is not a form of misconduct.
In her lawsuit, Newman insists that she has at all times been in “sound physical and mental health.” The lawsuit was filed in U.S. District Court For The District of Columbia.
And the lawsuit raises major constitutional issues.
Judge Newman alleges she has been effectively illegally removed from office in violation of U.S. Constitution art. III, Section 1, which empowers only the U.S. Senate to remove her from office through impeachment.
She also complains her First Amendment rights are being violated by a court-imposed gag order that prevents her and her attorneys from talking about the disciplinary investigation.
When Are You Too Old?
When are you too old to do the job? Are you too old because you reach a certain age? Or is it age combined with illness that disqualifies you? Is the perception of Judge Newman’s competency or lack thereof influenced by pervasive age discrimination American society?
Similar concerns recently arose when Democrats called for the resignation of U.S. Sen. Dianne Feinstein, D-CA, 89, after she became sick and couldn’t travel to the Capital to vote as a member of the Senate Judiciary Committee. It appears the real concern was Feinstein’s inability to travel because she was sick. Having returned to the Capitol last week, cries for Feinstein’s resignation abated.
Scrutiny of Judge Newman appears to have accelerated after she underwent heart-related surgery in the summer of 2021. Judge Moore said Judge Newman seemed confused afterward and her work output diminished.
Judge Newman disagrees with Judge Moore’s assessment in her lawsuit:
“Judge Newman sat on ten panels and issued at least eight (including majority, concurring, and dissenting) opinions. Had Judge Newman suffered a heart attack, it would be extremely unusual for anyone, let alone a 94-year-old person, to serve throughout that period without skipping a beat (so to speak).
She also offers an empirical study showing that from 2020 to 2022 her “deviation from the average productivity and timeliness among the active judges of the Federal Circuit was not statistically significant.”
Has The Court Violated The Constitution?
Aside from the issue of who can impeach a federal judge, Judge Newman’s attorneys have cited numerous alleged violations of Judge Newman’s Constitutional rights.
“As Defendants have neither statutory nor constitutional power to compel Plaintiff to undergo an involuntary medical or psychiatric examination, or to compel Plaintiff to surrender her private medical records, the imposition of these requirements on Plaintiff are [beyond one’s legal authority] and unconstitutional, as is disciplining Plaintiff for objecting to the same,” the lawsuit alleges.
The lawsuit alleges Judge Newman was denied her Fifth Amendment right to due process of law, and that forcing Judge Newman to undergo a “compelled medical or psychiatric examination” is an unconstitutional search under the Fourth Amendment.
The lawsuit alleges the gag order in the case is an unconstitutional prior restraint that violates the First Amendment. The lawsuit seeks to enjoin the order “requiring Plaintiff to refrain from publicizing the proceedings against her and publicly defending herself from the outrageous complaints lodged against her.”
Judge Newman is represented John J. Vecchione, senior litigation counsel of the New Civil Liberties Alliance, a conservative, non-profit civil rights group based in Washington, D.C.
The Knot Tightens
After Judge Newman refused to voluntarily resign, the pace of the proceedings against her proceeded at breathtaking speed...