Judge Newman’s Upheld Suspension Has Some Questioning Ethics Law

A rare decision affirming the suspension of a federal appeals court judge unleashed a flurry of calls to change the statutory framework for evaluating judges for potential disability and misconduct—though there’s much less agreement on which direction changes should go.

The US Judicial Conference’s Committee on Conduct and Disability upheld the suspension of 96-year-old Federal Circuit Judge Pauline Newman for not participating with her colleagues’ investigation of her under the Judicial Conduct & Disability Act. It was just the third written decision issued by the panel in more than three years. The committee applied a deferential standard for its review of Newman’s suspension, finding that the US Court of Appeals for the Federal Circuit’s Judicial Council, led by Chief Judge Kimberly A. Moore, hadn’t clearly erred or abused its discretion at several key points in the investigation.

Newman’s colleagues “dotted every ‘i’ and crossed every ‘t,’” said University of Pittsburgh law professor Arthur Hellman, who for decades has studied and helped draft the laws courts use to police judges. As a result, Hellman said he’s not surprised the committee declined to reverse the suspension, though he said he’s also not fully convinced it’s the right decision.

“Each of the individual points is certainly plausible and even persuasive on its own,” he said. “But when you step back and look at it, it really should’ve been handled in a different way.”

Hellman said he now wonders if the committee was too deferential to Newman’s colleagues on the Judicial Council—and whether the 1980 federal law governing judicial misconduct probes or the rules around it should be changed.

“I can’t help but think that when the issue is whether to suspend an Article III judge appointed by the president and confirmed by the Senate that maybe the standard of review should be something higher,” he said.

Other scholars, however, took issue with that assessment.

“I disagree that the mostly deferential standard of review applied by the Committee is inappropriate,” said Paul Gugliuzza, a law professor at Temple University’s Beasley School of Law who has written extensively about the Federal Circuit.

As a legal matter, “the standard applied by the Committee is exactly what you’d see in a normal appeal in litigation: de novo review for legal questions, clear error for judicial fact-finding, and abuse of discretion for discretionary matters,” Gugliuzza said.

Practically speaking, he added, Newman’s dispute already had a layer of appellate review because the full complement of active Federal Circuit judges—minus Newman—reviewed the work of a three-judge investigative committee that initially looked into the questions around her fitness.

“I don’t see any good reason to allow the committee to essentially second guess the work that two tribunals have already done,” Gugliuzza said.

Aliza Shatzman, founder of the Legal Accountability Project, a nonprofit dedicated to improving the experiences of law clerks, said there’s generally too much deference given to judges who conduct investigations of their peers, but the Newman proceedings are “the rare example of the judiciary actually trying to hold a judge accountable.”

“I’ve been really appalled by Judge Newman’s conduct and her refusal to meaningfully participate in the investigation,” said Shatzman, a former judicial clerk.

As part of the investigation into Newman’s capacity to serve, the Judicial Council interviewed a former judicial assistant of the judge about an employment dispute that began in Newman’s chambers and continued after the assistant left his position for a job elsewhere at the court. One of her clerks also left Newman’s office during the probe after complaining he’d been tasked with working on personal rather than court-related work for the judge, according to the Judicial Council’s order suspending Newman. She allegedly responded to the Judicial Council that those personnel issues were not “significant,” according to the order.

Shatzman said there are larger issues provoked by an aging federal judiciary that have mostly gone unaddressed, despite the attention and publicity Newman’s case has garnered.

“We hear from a lot of clerks working for judges who are too old to serve,” Shatzman said, but “in most instances law clerks and other judicial employees stay silent” due to potential reputational harms that could result from blowing the whistle.

Confrontational System

Jeremy Fogel, a retired federal judge who has also worked extensively on the issues of judicial ethics and mental health, said the situation surrounding Newman’s suspension illustrates broader problems with how the federal judiciary deals with aging in its ranks. Fogel said a protocol to assess judges’ cognitive function on a regular basis, implemented by the judiciary in consultation with experts, could reduce the kinds of confrontations that can emerge when a particular judge appears to show signs of decline.

“Not having a process in place for making these kinds of determinations means that each situation is ad hoc: it’s between Judge Newman and Chief Judge Moore or Judge Newman and the Judicial Council, and it gets very personal,” Fogel said.

“The thing that just cries out about this is we have a very unsophisticated way of dealing with it, and it’s inevitably an unhappy outcome,” Fogel said.

He added that he thought the committee’s ruling was “well done,” that he didn’t see “any irregularities,” and that “all the judges did their job.” But they’re “operating in this two-dimensional universe” where ad hoc decision-making and bruised egos are the norm.

“The problem’s with the system,” he concluded.