What To Do When A 95-Year-Old U.S. Judge Won't Step Down?

The U.S. Constitution gives federal Judges job security during 'good behavior.' A judge on the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., is testing the meaning of that phrase.

Judge Pauline Newman in 2018.

Since this story was written, Judge Newman obtained representation from the New Civil Liberties Alliance, which is seeking to move the dispute to a different circuit, noting Chief Judge Kimberly Moore both initiated the complaint and is a position to decide it.

U.S. District Judge Pauline Newman was nominated to the federal bench approximately 40 years ago by the late President Ronald Reagan.

She has had a storied career as a trailblazer in the law of patents and trademark.

But her judicial output slowed to a trickle in recent years and reflects extensive judicial delays. Concerns have been “raised” that Judge Newman “routinely” makes statements in open court “that demonstrate a clear lack of awareness over the issues in the cases.” In a 2022 proceeding, she “fainted following an argument and was unable to walk without assistance.”

Many have argued there should be term limits for federal judges but the judiciary takes the position that Article III, Section One of the U.S. Constitution grants federal judges lifetime tenure during “good behavior.”

In the past, when a federal judge showed signs of mental decline, fellow judges in the circuit or district met quietly with them and strongly encouraged them to take “senior status,” which involves part-time judicial work.

This occurred with respect to Judge Newman last month but she adamantly refused to retire and insisted upon remaining a full-time active duty judge.

The Chief Judge of the Federal Circuit, Kimberly Moore, said she talked with Judge Newman for 45 minutes and expressed her concerns but Judge Newman refused to consider senior status, saying she was the “only person who cared about the patent system and innovation policy.”

Did Judge Newman misbehave?

Did Judge Newman violate Article III, Section One of the U.S. Constitution, which unambiguously grants a federal judge tenure “during good behavior”? She is aged and is deemed by others to be less competent than she once was. But is that the equivalent of bad behavior?

A special three-judge committee of the Federal Circuit concluded on April 7 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 offered Judge Newman an opportunity to undergo medical testing and evaluation, which the committee found to be warranted. In response, Judge Newman told the court clerk not to relay documents from the court to her home or office notifying her of the committee’s orders

Judge Moore said Rule 13(a) of the Rules for Judicial Conduct and Judicial Disability Proceedings states it is “cognizable misconduct” for a judge to refuse “without good cause shown, to cooperate in the investigation of a complaint or enforcement of a decision rendered under these Rules.”

The Hammer…