Will the Supreme Court Review Judge Newman’s Stealth Impeachment?

Judge Newman has been “temporarily” suspended from case assignments in the Federal Circuit by her fellow judges. She has filed a cert petition with the Supreme Court. Her “stealth impeachment” raises significant issues worthy of Supreme Court review.  Since all the briefing on her cert petition is now completed — and a decision on the petition is imminent — this post will briefly recap the issues, with the most important briefs linked.

As I’ve blogged about previously, recall that Judge Newman has challenged her suspension from new case assignments. (Fellow bloggers Josh Blackman and Jonathan Adler have also followed the case closely.) But in the latest ruling, the D.C. Circuit held that the Judicial Council’s Reform and Judicial Conduct and Disability Act of 1980 blocks any review of the lawfulness of this suspension.

In March, Judge Newman filed a cert petition presenting the important constitutional question of whether she is entitled to her day in court to challenge the lengthy suspension, which has no end in sight. Her petition begins with this powerful introduction:

This petition presents questions concerning crucial constitutional and statutory aspects of lifetime tenure and judicial independence, especially the availability of judicial review for intra-branch infringements on judicial service. These questions affect the very independence of Article III courts and potentially affect every member of the federal judiciary and every litigant who appears before them. For three years the Federal Circuit has been operating short-handed because the judges of that court have summarily removed its longest-serving and most storied jurist (its “Great Dissenter”) from the bench.

The D.C. Circuit Court of Appeals held that the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (“the Disability Act”) bars review of the unlawful actions taken against Judge Pauline Newman. This administrative removal of a judge who is famous for dissenting from her colleagues, by those same colleagues, with judicial refusal to review the merits of the action, undermines the judicial independence that is a vital foundation of our constitutional design. Every judge who gets crosswise with her chief judge or her colleagues must now worry whether similar tactics could be used to remove them.

Judge Newman has continued to speak and write before the legal community, and no finding of disability has been made concerning her in the years since the unlawful administrative orders began. She voluntarily underwent and passed three expert evaluations of her mental fitness and was reported as having the mental ability of someone decades younger. She now has been suspended longer than any federal judge in history. The length of the suspension, the apparent intention to keep her off the bench permanently, the same judges acting as complainant, witnesses and judges, and the refusal to transfer the matter to another circuit for neutral investigation are unprecedented.

Since then, significant amicus briefs have been filed supporting Judge Newman. Last month, I filed one such supporting amicus brief, joined by former federal judges Janice Roger Brown, Paul R. Michel, Kent A. Jordan, Randall R. Rader, Thomas I. Vanaski, and Susan G Braden.  Our brief argues that federal courts must be able to review constitutional claims of the type presented by Judge Newman:

In its decision below, the D.C. Circuit reaffirmed a 25-year-old precedent that prevents federal judges from seeking federal-court redress from Judicial Council actions that de  facto remove them from the federal bench. That bar applies without regard to whether—as alleged here—the Judicial Council has acted in violation of the judge’s rights under the U.S. Constitution. Particularly in light of the threat to judicial independence posed by the many recent attacks on the authority of federal judges, the Court should grant review to reaffirm the authority of federal courts to intervene to hear claims raising constitutional claims of the sort at issue here.

Another supporting brief came from the District of Columbia Bar Association. Its brief  highlights the importance of Judge Newman’s independent voice on the Federal Circuit:

The involuntary and indefinite suspension of Judge Newman from all judicial duties is an impeachment and deprives our legal community of an experienced and fiercely independent voice in the ongoing weaving of the tapestry of caselaw at the Federal Circuit. This ongoing suspension circumvents our Constitution because Judge Newman can only be impeached by Congress. See U.S. Const. art. II, § 4.

University of Houston law professor Andrew Michaels, a former law clerk to Judge Newman (2010 to 2012), also supports review in a strong amicus brief.  He explains why Judge Newman’s allegedly “temporary” suspension is tantament to impeachment:

The Judicial Conduct and Disability Act of 1980 expressly prohibits permanent removal.2 Administrative tribunals should not be permitted to circumvent this prohibition (as well as constitutional guarantees) merely by characterizing the removal as an indefinite series of consecutive “temporary” suspensions. Judge Newman has now been “suspended” for over three years, and counting.

The Buckeye Institute, the Manhattan Institute, and the Committee for Justice also filed a supporting amicus brief, asking the Supreme Court to review the foundational principles at issue in the case:

This de facto impeachment circumvents the Constitution’s structural safeguards. Impeachment requires bicameral action, supermajority agreement in the Senate, and  public, deliberative proceedings. These protections reflect the Framers’ judgment that  removing a federal judge demands broad political accountability and careful deliberation.  The Federal Circuit’s unilateral action evades those safeguards entirely, consolidating investigative, prosecutorial, and adjudicative functions within the judiciary itself.

Some of Judge Newman’s former law clerks also filed to support her, arguing that she deserves a day in court:

Without judicial review of her suspension, Judge Newman is in limbo. To safeguard judicial independence and to provide due process, Judge Newman is entitled to meaningful review of her constitutional claims.

The sole brief opposing review came from the Federal Circuit’s Chief Judge, Kimberly A. Moore, and was filed by the Solicitor General.  The SG’s brief raises largely technical jurisdictional arguments, rather than disputing the merits of Judge Newman’s claims. The brief argues:

[Judge Newman’s] contentions lack merit and implicate no circuit split. As the courts below correctly held, Congress directed challenges to judicial-council orders to the Article III judges serving on the Judicial Conference, not to federal district courts. That sensible policy decision ensures a mechanism for reviewing allegations of judicial misconduct or incapacity that comports with separationof-powers considerations, offers multiple layers of review, and prevents overburdening federal courts with complaints about judicial-council decisions. And petitioner identifies no plausible conflict among the circuit courts warranting this Court’s review.

Understandable, the SG’s brief makes no attempt to discuss Judge Moore’s bizarre AI cartoon about the Federal Circuit — a cartoon that glaringly removed Judge Newman from her position on the court, as Josh Blackman discussed here in detail.

Yesterday, Judge Newman replied to Judge Moore’s legal arguments. Thus, the briefing is complete on the cert petion. The Court is scheduled to consider the petition at its June 11 conference. That means we may hear as soon as Monday, June 15, whether the Court has agreed to hear Judge Newman’s case.

I hope that the Supreme Court takes this case. The “stealth impeachment” launched against Judge Newman obviously has the potential to threaten judicial indpendent in many ways. The Supreme Court should speak definitively about whether this end-run around the Constitution’s impeachment process is permitted.