This post was originally published at the Volokh Conspiracy.
Of late, the media has fixated on judicial ethicsfor certain judges, at least. Regrettably, many of these stories fail to put the accusations in context. In some situations, judges took actions that were actually consistent with the rules, or were not-clearly inconsistent with the rules. Still, self-professed experts find fault with unwritten rules. In other cases, judges have made good-faith mistakes based on misreading byzantine codes, and promptly agreed to correct those errors. Some of the allegations border on frivolous, but disfavored judges still get placed under the microscope. Throughout all of this breathless reporting, there has not been a single allegation of an actual conflict of interest between a judge and a party that would result in recusal. To quote Justice Breyer, there has been nothing "underhanded." At most, the claims focus on the nebulous appearance of impropriety standard, which can mean just about anything.
Yet, at present, we may be witnessing serious judicial misconduct that involves an actual conflict of interest. And the Washington Post does not need to fly a swat team of reporters to Amarillo to investigate. I speak, of course, about the Court of Appeals for the Federal Circuit.
Now, I do not have any dog in this fight. I know little about patent law, other than the fact that the Supreme Court routinely reverses the Federal Circuit. Chief Judge Moore was a professor at George Mason, but I never took any classes with her. And, as best as I can recall, I've never even seen Judge Newman. Indeed, she only popped on my radar when I was calculating which judges were eligible to take senior status. Newman was born in 1927, was appointed to the Federal Circuit in 1984, and became eligible for senior status in 1996. But the almost-96-year-old has never taken senior statusand that decision has created problems for her colleagues.
According to Judge Moore, Judge Newman is taking a really long time to resolve casesin some situations, more than a year. (To be frank, Judge Newman is performing at a faster clip than some Biden-appointed judges who are five decades younger.) On the surface, Judge Moore is trying to pressure Judge Newman to take senior status. As a general matter, senior status judges can still hear casesbut those assignments are at the discretion of the Chief Judge. And if Newman were to take senior status, then Moore and her successors could simply prevent Newman from hearing other cases. The remedy being sought is stark: Judge Moore, and her colleagues on the Federal Circuit, are trying to prevent any future cases from being assigned to Judge Newman. Indeed, Judge Moore has already stopped assigning new cases to Newman, who remains an active status judge. If Judge Moore succeeds, Judge Newman would remain an Article III judge in name only. To put it bluntly, Chief Judge Kimberly Moore is engaging in a stealth impeachment of Judge Pauline Newman.
Newman is now represented by the New Civil Liberties Alliance. And NCLA sent a letter to Moore. I realize the facts here are complex, and contested. I'll avoid opining on the merits. Rather, I want to focus on the apparent conflict of interest.
Every federal circuit has a "Judicial Council." That council includes some circuit judges, as well as some district court judges, from that circuit. (The Federal Circuit has no district court judges, so only circuit judges sit on that council.) If a misconduct complaint is filed against a district court judge in a particular circuit, it is understood that circuit court judges from that circuit can impartially resolve the conflict. After all, circuit court judges have to review the decisions of district court judges all the time. Most circuit judges never actually even see district court judgesexcept, as John Roberts once observed, in the D.C. Circuit, where all judges have to share a cafeteria.
However, when a misconduct complaint is filed against a circuit court judge, there will often be a potential conflict, or at least awkwardness. Specifically, circuit judges may not be comfortable to resolve a case against their colleague. They sit together regularly, for decades at a time. Partiality can always be questioned. Therefore, a mechanism exists in which the Chief Judge of the circuit can ask the Chief Justice of the United States to reassign the matter to another circuit. That way, the issue can be impartially adjudicated. This process is not uncommon. Over the past decade, misconduct complaints against circuit judges from the Fifth, Sixth, and Eleventh Circuits were transferred to other circuits.
Yet, Chief Judge Moore has not, to date at least, moved to transfer Newman's case to another circuit. This decision is especially problematic due to the nature of the allegations. Here, we are not dealing with a misconduct complaint from a litigant, or private citizen, who objects to something the judge did on bench, or in public. Rather, the allegations here concern actions that Judge Newman has taken during the opinion writing process. Other than the final date on which an opinion is actually published, the public has no knowledge about how the sausage is made. We do not know when drafts were circulated. We do not know how long judges took to make and revise edits. And we do not know whether complicated legal issues made the process take longer. The only people who have this evidence would be the fellow judges of the circuit, including Judge Moore, and court staff. Yet, Judge Moore purports to decide whether there was misconduct. She is the fact-witness, the fact-finder, and the adjudicator. There is an apparent conflict of interest.
Finally, there is another issue lurking under the surface. If Chief Judge Moore succeeds in pushing her colleague to take senior status, a new vacancy would open up for the Biden Administration. The patent bar is, from what I've heard, very clubby. And there is no blue slip delay. I'm sure there is a list of attorneys waiting to fill that seat. Judge Moore, by pushing out her colleague, is opening a seat for someone else. Judges should have no role in picking their successors. Nor should judges have a role in creating vacancies on their court, in which more-congenial nominees can assume the seat. And I don't put much stock in the fact that Moore is a Republican-appointee, and we currently have a Democratic president. Judge Newman has suggested that this misconduct process is in retaliation for her disfavored views on patent law.
Chief Judge Kimberly Moore cannot be the judge, jury, and executioner of Judge Newman.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us atinfo@fedsoc.org.
Visit link:
The Stealth Impeachment of Judge Newman in the Federal Circuit - The Federalist Society
- Court: Trump Can Appeal Attempt To Disqualify Fani Willis - The Federalist - March 20th, 2024 [March 20th, 2024]
- Media Give Blasey Ford Another Chance To Smear Kavanaugh - The Federalist - March 20th, 2024 [March 20th, 2024]
- Exclusive: Jordan Demands Docs From CISA About PA Election 'Task Force' - The Federalist - March 20th, 2024 [March 20th, 2024]
- The Columns Spotlight: The Federalist Society Washington and Lee University - The Columns - March 20th, 2024 [March 20th, 2024]
- Democracy Under Pressure at the EU Level - The New Federalist - Le Taurillon - March 20th, 2024 [March 20th, 2024]
- Justice Jackson's 'Hamstringing' Comment Wasn't Her Worst - The Federalist - March 20th, 2024 [March 20th, 2024]
- Andrei Illarionov and Morgan Wirthlin, Author at The Federalist - The Federalist - March 20th, 2024 [March 20th, 2024]
- Democracy Under Pressure in Hungary - The New Federalist - Le Taurillon - March 20th, 2024 [March 20th, 2024]
- Mike Johnson Needs To Grow A Spine And Fight Biden's Border Invasion - The Federalist - March 20th, 2024 [March 20th, 2024]
- High Gas Prices Don't Bother Biden Because They Cut Car Use - The Federalist - March 20th, 2024 [March 20th, 2024]
- Hemingway: All Of Biden's Interactions With The Press Are Coordinated And Protected - The Federalist - March 20th, 2024 [March 20th, 2024]
- Zuckbucks Group Teaches Election Offices How To Target Speech - The Federalist - March 20th, 2024 [March 20th, 2024]
- Gov't Says 'Once-In-A-Lifetime Pandemic' Excuses First Amendment Violations - The Federalist - March 20th, 2024 [March 20th, 2024]
- Speaking Openly About Isolation Can Help Us Resist Tyranny - The Federalist - March 20th, 2024 [March 20th, 2024]
- Trans Zealots Revolt Against Reality Rather Than Admit They're Wrong - The Federalist - March 20th, 2024 [March 20th, 2024]
- Trump's 'Bloodbath' Is The Fake Media's New 'Guy' And 'Sir' - The Federalist - March 20th, 2024 [March 20th, 2024]
- It's Time For Georgia's AG To Indict Fani Willis For Perjury - The Federalist - March 20th, 2024 [March 20th, 2024]
- What's New In Bragg's 'Get Trump' Hush Money Lawfare In NY - The Federalist - March 20th, 2024 [March 20th, 2024]
- Clutch Your Pearls, This Isn't The Last Trump 'Bloodbath' - The Federalist - March 20th, 2024 [March 20th, 2024]
- DC Doesn't Just Spend Too Much, It Spends On The Wrong Things - The Federalist - March 20th, 2024 [March 20th, 2024]
- CNN Analyst Asks Feds To Meddle In Elections To Defeat Trump - The Federalist - March 20th, 2024 [March 20th, 2024]
- NYC Subway Shooting Is A Result Of 'Tolerance And Diversity' - The Federalist - March 20th, 2024 [March 20th, 2024]
- Keeping Trump In Court While Biden Campaigns Is Election Interference - The Federalist - March 20th, 2024 [March 20th, 2024]
- Disenchanted Democrats Should Be Asking Deeper Questions - The Federalist - March 20th, 2024 [March 20th, 2024]
- Olivia Rodrigo Hands Out Free Morning-After Pills To Teen Fans - The Federalist - March 20th, 2024 [March 20th, 2024]
- Poll Shows Biden Bombed State Of The Union Address - The Federalist - March 20th, 2024 [March 20th, 2024]
- GA Election Board Member Voted On Cases Involving His Clients - The Federalist - March 20th, 2024 [March 20th, 2024]
- GOPers Pass Bill To Keep OK Free Of Ranked-Choice Voting Chaos - The Federalist - March 20th, 2024 [March 20th, 2024]
- CISA Admitted 'Risks' Of Vote-By-Mail In Internal Docs From 2020 - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- Democrat Bill Aims To Stifle Regulation Of Big Fertility Market - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- Group Behind 'Zuckbucks' Is Now Meddling In The 2024 Election - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- California Democrats Work To Make Discrimination Legal (Again) - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- A Haley Win In New Hampshire Will Not Be The Victory She Thinks - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- Votes Without Citizenship Proof 'Exploded' In AZ After Dem Lawfare - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- Congressional Republicans Need To Start Fighting Abortion - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- Matthew Malec, Author at The Federalist - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- Larry Taunton, Author at The Federalist - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- Congress's $1.7 Trillion Spending Bill Goes On Trial In Texas - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- Chicago Abortionists Advertise Possibly Illegal Late-Term Abortions - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- How DeSantis's Disappointed Supporters Can Move On From Ron - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- Thousands Attend March For Life Hoping To Make Abortion 'Unthinkable' - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- Putting An End To Race-Based Hiring Is 30 Years Past Due - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- Ever-Closer Union: Brussels Plots Federalist Reforms The European Conservative - The European Conservative - January 23rd, 2024 [January 23rd, 2024]
- 4 Years Too Late, DOJ Admits Biden 'Laptop From Hell' Is Real - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- Heritage Foundation President Slams Davos Elites To Their Faces - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- TSA Sign Says Migrants Without ID May Opt Out Of Photos - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- Two-Thirds Of Elites Say There's Too Much Freedom In America - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- How Disgruntled Fishermen Could Prompt SCOTUS To Capsize The Administrative State - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- No Testing Needed To Prove Hailey Davidson Isn't A Woman - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- Democrats Promise To Save 'Democracy' By Destroying It - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- 7 Takeaways From SCOTUS Case That Could Slay The Bureaucracy - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- Haley Woos Her Real Constituents In New Hampshire: Democrats - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- Men, Ignore The Bad Advice To Seek A 'Low-IQ' Wife - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- By 'Protecting Election Workers,' Democrats Mean Protecting Control Over Election Administration - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- Harbaugh Champions Right To Life After Football Championship - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- Oppressor Matrix Gives Leftists Like Hasan Piker Brain Worms - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- How And Why The Ivy League Will Die - The Federalist - January 23rd, 2024 [January 23rd, 2024]
- Gorsuch Gleefully Leads Right-Wing Cohort In Fulfilling Their Federalist Society Quest - TPM - January 23rd, 2024 [January 23rd, 2024]
- Only 6% Of Americans Approve Of GOP Leader Mitch McConnell - The Federalist - December 19th, 2023 [December 19th, 2023]
- Knowing Of Hunter's Plan To Defy Subpoena Puts Biden In Legal Jeopardy - The Federalist - December 19th, 2023 [December 19th, 2023]
- PA School Board President Sworn In With Pornographic Books - The Federalist - December 19th, 2023 [December 19th, 2023]
- The 'Ukraine War Is Good For Business' Argument Is Vile And Also A Lie - The Federalist - December 19th, 2023 [December 19th, 2023]
- Data: Banning Therapy For LGBT People Increases Suicide Risks - The Federalist - December 19th, 2023 [December 19th, 2023]
- John Yoo and Jeremy Rabkin, Author at The Federalist - The Federalist - December 19th, 2023 [December 19th, 2023]
- From Woke Walkouts To 'Equity,' Illinois Schools Are Melting Down - The Federalist - December 19th, 2023 [December 19th, 2023]
- Hunter Biden Invokes Gun Rights Ruling That Joe Called Unconstitutional - The Federalist - December 19th, 2023 [December 19th, 2023]
- China's Cyber Warfare Surges With Hacking Of U.S. Infrastructure - The Federalist - December 19th, 2023 [December 19th, 2023]
- Every Biden 2024 Scenario Is Deadly Dangerous - The Federalist - December 19th, 2023 [December 19th, 2023]
- Study Finds NewsGuard Overtly Biased Against Conservatives - The Federalist - December 19th, 2023 [December 19th, 2023]
- Republicans Need To Learn How To Go After The Left - The Federalist - December 19th, 2023 [December 19th, 2023]
- Biden Overdrew America's Account With Blank Checks To Ukraine - The Federalist - December 19th, 2023 [December 19th, 2023]
- Meet Michael Dreeben, The Man Behind Major Anti-Trump Ops - The Federalist - December 19th, 2023 [December 19th, 2023]
- Senate Dems Block Bill To Allow Whole Milk In School Lunch Programs - The Federalist - December 19th, 2023 [December 19th, 2023]
- 'Experts' Who Discredited Biden Laptop Call To Extend Warrantless Spying - The Federalist - December 19th, 2023 [December 19th, 2023]
- Ranked-Choice Voting Proponents Are Lying To WI Voters To Hide The System's Flaws - The Federalist - December 19th, 2023 [December 19th, 2023]
- The Case for an AUMF Against Iran and Its Proxies - The Federalist Society - November 18th, 2023 [November 18th, 2023]
- Bari Weiss's Olson Lecture: You Are the Last Line of Defense - Reason - November 18th, 2023 [November 18th, 2023]
- Book Review: The People's Justice - The Federalist Society - November 18th, 2023 [November 18th, 2023]
- Farewell to the Mayflower - Reason - November 18th, 2023 [November 18th, 2023]
- FBI Targets Trump Voters Ahead Of 2024 Election - The Federalist - October 9th, 2023 [October 9th, 2023]