Judge Newman Makes Opening Claims at DC Circuit Against Ban
U.S. Court of Appeals for the Federal Circuit Judge Pauline Newman made her opening claims in a suit against her colleagues' investigation into her fitness to continue serving on the bench. In addition, Newman moved to unseal certain documents used in her brief, claiming that her colleagues on the court "threatened her and her attorneys with unspecified sanctions if any portion of the documents" were made public (Hon. Pauline Newman v. Hon. Kimberly Moore, D.C. Cir. # 23-01334).
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The 97-year-old Newman, who is currently subject to a ban from hearing new cases at the appellate court (see 2409060048), said the Judicial Conduct and Disability Act's remedies provision is "unconstitutional on its face if it is construed to authorize judicial councils to administratively deprive an Article III judge of the ability to perform her judicial duties against her will." Congress can't allow judicial councils to take such action, and no judicial council has ever issued an order that bars a judge from performing "all judicial functions," the brief said.
Newman argued that the U.S. Court of Appeals for the D.C. Circuit can make the provision constitutional by "holding that Congress did not authorize judicial councils to prevent an Article III judge from exercising any judicial powers at all."
Assuming the Act is constitutional, it only allows suspensions that are temporary and for a certain time, the brief said. However, the ban at play here is for one year and is subject to renewal unless Newman "agrees to comply with its impermissible demands," Newman argued. The judge also said the investigation into her fitness committed various due process violations, since, among other things, the investigating council's "members are fact witnesses."
In her motion to unseal various documents at issue, Newman bemoaned her colleagues' unwillingness "to make public even redacted versions of the documents." The documents at issue are: Newman's motion to reconsider her suspension, the CAFC special committee's order in response to the motion, Newman's reply to the order and the "Gag Order of the Special Committee." The judge said there's no "justifiable reason" to keep the documents under wraps.