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CAFC Orders Judge Newman to Remain Silent on Names of Witnesses in Fitness Investigation

The U.S. Court of Appeals for the Federal Circuit ordered Judge Pauline Newman to not publicly disclose the names of witnesses in the court's ongoing investigation on whether the judge is fit to continue serving on the bench. Releasing the order publicly along with all other court orders and letters in the probe, per Newman's request, the appellate court said that Newman and her counsel remain bound by the court's confidentiality order in the investigation regarding future orders and filings.

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The court issued an order on May 3 telling Newman she is subject to confidentiality obligations under the Judicial Conduct and Disability Act of 1980 and the Rules for Judicial-Conduct and Judicial-Disability Proceedings. In response, Newman wrote the three-judge panel of Kimberly Moore, Sharon Prost and Richard Taranto overseeing the case a letter objecting to the order on First Amendment grounds.

Addressing these arguments, the three-judge panel said that the "confidentiality requirements imposed by the Act, by the Rules, and by the Confidentiality Order (which is coterminous with the Rules) on disclosure during this stage have been widely held to be compatible with the First Amendment." Various courts have said that compelling interests served by establishing confidentiality are enough to outweigh First Amendment interests parties may have in speaking publicly about the proceedings, the judges said.

The court added that the need for confidentiality "is buttressed by experience in this very proceeding -- in which the Committee believes that adherence to confidentiality requirements has encouraged witnesses to come forward and to speak candidly." Witnesses the court has interviewed may not have come forward with relevant information "if they believed they would immediately be dragged into a public media storm," the court said.

The panel said that Newman's counsel's suggestion that Newman could not physically intimidate anyone "ignores the obvious power that Judge Newman, as a circuit judge, has over the lives and livelihoods of employees in a federal courthouse." The judges cited recent action from Newman in which she purportedly ordered an employee who left her chambers to return to her chambers or else she would end his employment at the court.

Moore initially brought the complaint against Newman in March, raising questions about the judge's ability to effectively do her job (see 2304140022). The court alleged probable cause that Newman carried out "conduct prejudicial to the effective and expeditious administration of the business of the courts" and is unable to perform her duties due to a "mental or physical disability."