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Protecting Judicial Independence: Providing Accused Judges a Fair Administrative Forum

Andrew Morris
Senior Litigation Counsel

December 8, 2023

A new kind of administrative threat has emerged: use of the federal judiciary’s internal administrative machinery to bypass the Constitution’s impeachment process and sideline a disfavored judge. That’s what is happening in the U.S. Court of Appeals for the Federal Circuit. Its administrative Judicial Council has prohibited Judge Pauline Newman from hearing any new cases—for a period that will last at least 18 months but has no set ending date.[1]

This kind of threat presents several knotty problems, but Congress can make one small fix that would do much to resolve it in the most extreme cases, such as Judge Newman’s. When an administrative complaint is filed, the targeted judge should have the option to transfer the matter to another circuit.

Circuit judicial councils

Each of the 13 federal circuits has its own internal “judicial council,” made up of judges from the circuit. Each judicial council sets its circuit’s administrative policies.[2] Among their various responsibilities, judicial councils are charged by statute with investigating alleged judicial misconduct or disability.[3] Congress assigned them this task, hoping they would resolve the misconduct or disability complaints that warrant some administrative attention but aren’t sufficiently serious to justify starting up the congressional impeachment process. Congress authorized judicial councils to address these matters through their own internal administrative procedures, and it authorized them to order administrative sanctions.[4] The statute identifies some possible sanctions, such as reprimands or censures, as well as withholding new case assignments “on a temporary basis.”[5] To remain consistent with the Constitution, this “temporary basis” must be limited, at most, to adjusting a judge’s docket if the judge needs to work through an excessive case backlog. The Constitution does not permit a judicial council to suspend a judge or limit a judge’s caseload for punitive purposes.

In this administrative system, an unbiased decisionmaker is essential. As the decisionmaker in its circuit, a judicial council combine the roles of complainant, investigator, prosecutor, fact-finder, and sentencing judge. [6]  And from beginning to end, it has unusually extensive discretion in exercising these roles. The Chief Judge and the Judicial Council can initiate a complaint against a judge. They choose the facts they consider relevant. They conduct any contested proceedings. They make the findings of fact. They then choose a sanction, with no controlling statutory or regulatory standard to limit their discretion. And their final decision faces only deferential review, which is conducted by the nationwide Committee on Judicial Conduct and Disability.[7] There are no interlocutory appeals.

The Judicial Council’s refusal to transfer the proceeding against Judge Newman

In Judge Newman’s case, the Chief Judge personally initiated a complaint to investigate Judge Newman for possible cognitive disability.[8] Judge Newman pointed out that her colleagues on the Judicial Council—all are circuit judges, like her—were not appropriate judges of the complaint. Because they have worked with her on many cases, they are key fact witnesses about her cognitive ability. So she asked them to transfer her case to any other circuit. The Judicial Council denied her request.[9] That denial was not appealable until Judge Newman exhausted the Judicial Council litigation, then petitioned the Committee on Judicial Conduct and Disability for the deferential review it conducts.

To disinterested observers, Judge Newman’s argument for transfer was obviously correct. Two former chief judges from the Federal Circuit took the rare step of publicly criticizing their former court for refusing to transfer her case.[10] A third former chief judge also went public in support of a transfer.[11] Undaunted by this rare judge-to-judge criticism, the Federal Circuit’s Judicial Council still refused to surrender control of the matter.

So the Judicial Council proceeding against Judge Newman ground forward. The Judicial Council conducted an investigation, but did not reach a conclusion about whether Judge Newman has cognitive problems. Instead it found her guilty of “serious misconduct” for what it deemed insufficient cooperation with its investigation.[12] Although Judge Newman had voluntarily undergone two neurological exams, and passed them both, the Judicial Council wanted her to undergo more testing with a doctor of its choice. Judge Newman declined to undergo that additional testing until her case is transferred to a neutral circuit, so the Judicial Council found her guilty of misconduct. It then issued an order prohibiting her from hearing any cases for a year from the date of the order, with that period to be extended if Judge Newman continues her “failure to cooperate.”[13]Judge Newman is challenging this order before the Committee on Judicial Conduct and Disability, and is challenging the entire proceeding in federal district court.

A dangerous precedent

By preventing Judge Newman from deciding cases, the Judicial Council has stepped well outside the bounds of its authority to conduct circuit “administration.”[14] By sidelining a life-tenured judge, the Judicial Council is trying to take the discretion Congress granted it for administrative purposes and wield it to usurp Congress’s impeachment prerogative.

This is a dangerous precedent. Federal judges could have many reasons to want to oust a colleague. Maybe the colleague is getting older, and a majority of the judicial council wants the current president to name her replacement. Or maybe the colleague dissents too much. That possibility hits close to home in this case, where Federal Circuit court-watchers have dubbed Judge Newman the court’s “Great Dissenter.” In fact, several of her dissents have been adopted by the U.S. Supreme Court—reversing the views of most of her colleagues.

Even if Judge Newman ultimately prevails in this matter and reclaims her place on the bench, serious constitutional damage already has been done. The Judicial Council has violated Judge Newman’s independence, denied her basic due process, and usurped Congress’s prerogative to impeach. At the same time, this litigation has imposed devastating costs on Judge Newman and, more broadly, on the entire judicial system. As one former Federal Circuit Chief Judge lamented, the Judicial Council’s refusal to transfer this proceeding has caused the court’s reputation to “hemorrhage.”[15]

A simple fix 

Many or even all of these costs could have been avoided if Judge Newman had been permitted to transfer this matter to an impartial forum. Which again highlights the importance of an impartial decisionmaker in this high-discretion—but also high stakes—process. Congress left the judicial councils broad discretion precisely because their authority is limited to internal administration; that authority does not extend to preventing life-tenured judges from hearing cases. To police the few matters where a judicial council tries to abuse its discretion in this way, it’s important to provide every subject judge a forum that is neutral.

One simple legislative change would do much to decrease the risk of this problem: When the Chief Judge receives or originates a misconduct or disability complaint, the statute should permit the subject judge to have the matter transferred to another circuit. This fix would cost little. It probably would be used rarely, because the concern in most such complaints is that a judicial council will go easy on an accused colleague, not that they will gang up on her.

* * *

In cases where a judge’s future is at stake, this change could prevent the cascade of problems that follow when a judge is forced to entrust her future as a life-tenured judge to a tribunal that she, in her own expert view, considers biased. Judge Newman’s case gives us a good example. Had she been permitted to address this matter in an impartial forum, the Federal Circuit might have avoided this extensive litigation—and the damage it has done to public confidence in this court and the broader judicial system.

[1] In re Complaint No. 23-90015, Order Sep. 20, 2023, at 72-73.

[2] 28 U.S.C. § 332(d).

[3] Judicial Conduct and Disability Act of 1980, Pub. L. No. 96-458, 94 Stat. 2035 (1980) (codified at 28 U.S.C. §§ 351-64).

[4] 28 U.S.C. § 358 (addressing “rules for the conduct of proceedings”); 28 U.S.C. § 354(a)(2) (addressing sanctions).

[5] 28 U.S.C. § 354 (a)(2).

[6] Regarding this discussion, see 28 U.S.C. §§ 351-358 (addressing judicial council authority and procedures).

[7] 28 U.S.C. § 357.

[8] In re Complaint No. 23-90015, Order March 24, 2023.

[9] In re Complaint No. 23-90015, Order May 3, 2023.

[10] Hon. Paul Michel, Chief Judge Moore v. Judge Newman: An Unacceptable Breakdown of Court Governance, Collegiality and Procedural Fairness, IP Watchdog, July 29, 2023; Hon. Randall Rader, The Federal Circuit Owes Judge Newman an Apology, IP Watchdog, Jul. 12, 2023

[11] .Hon. Edith Jones, Federal Judges Deserve Due Process, Too, The Wall Street Journal, Aug. 15, 2023.

[12] In re Complaint No. 23-90015, Order Sep. 20, 2023, at 68, 72.

[13] Id. at 72.

[14] 28 U.S.C. § 332(d).

[15] Hon. Randall Rader, The Federal Circuit Owes Judge Newman an Apology, IP Watchdog, Jul 12, 2023.