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CAFC Judges Defend Constitutionality of Judicial Disability Act

Three U.S. Court of Appeals for the Federal Circuit judges argued against Judge Pauline Newman's claims against her colleagues' investigation into the 96-year-old judge's fitness to continue serving on the bench. After a ruling from the U.S. District Court for the District of Columbia kept some of Newman's constitutional claims alive (see 2402120057), Judges Kimberly Moore, Sharon Prost and Richard Taranto argued that Newman's Fourth Amendment and due process claims both fell flat (Hon. Pauline Newman v. Hon. Kimberly Moore, D.D.C. # 23-01334).

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Newman had argued parts of the Judicial Conduct and Disability Act of 1980 are unconstitutional under the Fourth Amendment "to the extent" that they demand medical records or examinations without requiring a "warrant based on probable cause" or a "showing of constitutional reasonableness." In their investigation, the three judges ordered Newman to submit to a psychological evaluation due to reports that she had suffered cognitive decline and paranoia (see 2304140022).

In response, the three judges said that Newman failed to advance a "meritorious facial challenge" since the claims don't assert that any part of the Judicial Conduct and Disability Act is "unconstitutional in all of its applications."

Newman only said that "certain types of orders issued under the Act (those requiring medical or phychiatric exams or production of medical records) would violate the Fourth Amendment" if they were sent out without findings of Fourth Amendment requirements. Even if Newman could show that some order would violate this amendment, "that would not establish facial invalidity of the investigation provision of the Act, or of any language in the provision," the brief said.

The Fourth Amendment also "does not require a warrant based on probable cause for all such orders in this context," as Newman claims, the brief said. Since the Judicial Conduct and Disability Act can "obviously" be implemented in a way that satisfies the Fourth Amendment, all that's needed is a "reasonable suspicion that a judge suffers from a disability for all the investigative demands in the categories Plaintiff challenges," the three judges said.

Newman also advanced due process claims, arguing that the provisions allowing a special committee to demand psychiatric examinations "are unconstitutionally vague." The three judges said these claims fail since the Act "roots the assessment of disability in the concrete determination whether a judge has been rendered 'unable to discharge all the duties of office,'" the brief said. This isn't the type of discretionary or indiscernible judgment that courts can find constitutionally vague. The trio added that the Act's investigative provision isn't vague but rather "flexible, embodying discretion to choose tools based on particular facts, which is the widespread norm for authority to investigate."