Judge, 96, Mourns Tarnished Legacy While Saying She Won’t Leave

Judge Pauline Newman answered the door of her apartment at the Watergate complex in Washington on a chilly March evening.

Her longtime colleague on the Federal Circuit, Judge Alan D. Lourie, had walked over from his home in one of the Watergate’s other towers. It was not a social visit.

Two days before, 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.

Lourie, at 88 one of the four oldest federal judges himself, was there to deliver a plea to his 95-year-old colleague: Retire now, at the peak of your profession, and preserve your reputation. Moore, he said, had convinced the rest of their colleagues that Newman was “totally disabled physically, and mentally incompetent.”

“Do you agree?” Newman asked.

“I had no reason to disbelieve what she told us,” Lourie responded, according to Newman.

Newman stood up from the sofa where they were sitting and walked to the door, a cue for Lourie to leave. It was all over in less than 5 minutes.

It was a harbinger for what would become a nasty and deeply personal dispute over Newman’s fitness to remain on the bench. The showdown could herald other battles as judges with lifetime appointments keep getting older. Nineteen full-time federal judges are 80 or older, according to federal data analyzed by Bloomberg Law. The average age for federal jurists is 69.

The still-unfolding saga has offered a glimpse into judiciary employment proceedings that rarely spill into public view. It’s left Newman feeling gaslit by friends and coworkers. For now, she’s been suspended from hearing new cases.

Lourie “knew I was not physically disabled. And he knew very well that I was writing the same as always,” Newman said in an interview with Bloomberg Law. Lourie and Moore didn’t return requests for comment.

‘Extraordinary Fabrications’

Newman sat for an hour-long interview June 23, offering the most substantial comments she has made about the attempt to oust her, at her corner office overlooking the White House grounds. It was three days after her 96th birthday.

There were no aides in the room. She was fully in command, answering questions about complicated legal matters with authority while shuffling large case binders around her office without assistance. Her only outward signs of infirmity were a scratchy voice and a cast peeking out of her right blazer sleeve.

She never once said, “I don’t remember.”

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.” For Newman, the lack of proof for what she calls unfounded allegations explains why she has refused to provide medical records or undergo tests by court-appointed doctors.

See the full timeline: 96-Year-Old Judge Newman’s Fitness Probe: How We Got Here

“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?”

Moore initiated the probe into Newman’s fitness to remain an active judge under the 1980 Judicial Conduct and Disability Act earlier this year. While the probe initially focused on Newman’s capabilities to remain in the position, it has now been narrowed to discuss whether Newman had good reason for not complying with a Judicial Council special committee’s requests for medical exams and the release of medical records.

In Newman’s mind, the only way to prove a negative would be to visit every area hospital and persuade them to provide affidavits that she wasn’t treated for a heart attack. Even if she employed that cumbersome strategy, Newman said she believes Moore would never be satisfied.

“Whichever hospitals I don’t go to, the answer will be, ‘Well, what about Baltimore?’” Newman said. “‘You just went to GW, Georgetown. They say you weren’t there with a heart attack. How about Sibley?’ And so, I just didn’t know how to do that.”

In a court filing Tuesday, Newman’s lawyers said a neurologist and professor at the George Washington University School of Medicine & Health Sciences examined the judge and found “no significant cognitive deficits.” The doctor, Ted L. Rothstein, concluded that Newman’s “cognitive function is sufficient to continue her participation in her court’s proceedings,” the filing said.

Federal Circuit Judge Pauline Newman in her chambers on June 23, 2023.

Photographer: Haiyun Jiang/Bloomberg via Getty Images

‘It’s Tarnished’

Newman became the first direct appointee to the nation’s top patent court in 1984, after the Court of Customs and Patent Appeals and the appellate division of the US Court of Federal Claims merged to create the modern-day US Court of Appeals for the Federal Circuit.

The former chemical scientist has gained a reputation as a titan of patent law as well as one of its greatest contrarians.

It’s that reputation that Newman says is motivating the probe to oust her. In addition to health concerns, the special committee cites Newman’s declining productivity measured by the number of majority opinions she’s written compared to her colleagues.

However, those numbers don’t account for the dissenting opinions that have become Newman’s hallmark. While she wrote only nine majority opinions between June 2021 and December 2022, she penned 23 separate concurring or dissenting opinions in other cases. “It’s because I dissent so much,” she said of the probe’s real driving force.

Her colleagues on the court, she said, “are tired of being told that they’re not perfect.”

Behind the scenes, the friction between Moore and Newman has gotten personal, extending well beyond disagreements over how to complete judicial work. Newman says she refused senior status because the chief judge controls case load and could have decided not to give Newman any cases.

“‘Just go quietly, or we’ll make your life miserable.’ That was exactly the way it was presented to me,” Newman said of her first meeting with Moore, when the chief judge floated retirement.

Newman has sued her colleagues in D.C. federal court to get restored to active service. But in many ways, she recognizes the damage has already been done. Documents released by a special committee investigating her fitness to remain on the bench describe Newman as “paranoid” about technology and cite “bizarre” and “nonsensical” conversations.

Newman concedes she had a dust-up with the court’s information technology staff when they tried to train her to file her own financial disclosures. In the interview, she was fuzzy on specifics of courthouse technology. She said she resisted the IT training because her secretary had always performed the tasks, before he left without a replacement.

When asked about whether she worries the probe will cloud her legacy, Newman responded immediately. “Of course, I mean, that’s now history. I can’t do anything about it. It’s tarnished.”

Still, Newman feels strongly about not retiring quietly, as a matter of principle. She said she’d quit “instantly” if she thought she was no longer serving well.

“If the judges on a court can just vote out someone they don’t like, for whatever reason — because there are lots of strong personalities on the judiciary and they’re not all so lovable — then that’s not what the nation is entitled to,” she said. “You need a few grouches to dig out the truth.”