Amicus Brief: Newman v. Moore

In March 2023, Federal Circuit Chief Judge Kimberly Moore filed a complaint against her colleague Pauline Newman (a Reagan-appointed judge in her 90s), alleging that there was good cause to believe that Judge Newman is physically or mentally disabled from continuing to serve as an active judge. Instead of requesting a transfer to another circuit's judicial council—as has been done with every complaint against a circuit judge that had ever reached this stage—and despite the fact that the complaint itself identified Judge Newman’s colleagues as witnesses, Chief Judge Moore appointed a “special committee” to investigate the matter and report back for resolution by all Federal Circuit judges. Although no legislation or circuit rules provide for sanctions during the investigation, Chief Judge Moore suspended Judge Newman from hearing any cases.

The special committee ordered Judge Newman to undergo neurological and neuropsychological examinations by its chosen providers. Judge Newman declined, instead submitting evaluations by two medical professionals attesting to the fact that she is fully cognitively intact and able to continue her work. As a sanction for “non-cooperation,” the committee then suspended Judge Newman indefinitely. Judge Newman has thus not heard any new cases since April 2023, though she continues to draw her salary per federal law.

In May 2023, Judge Newman challenged her suspension in federal court, arguing in relevant part that the Judicial Conduct and Disability Act is unconstitutional as applied to her because the very individuals who had been identified as witnesses to her behavior, which allegedly show her decline, are now also serving as investigators and adjudicators, thus violating the basic norms of due process. The district judge dismissed the complaint, holding that Newman’s case is non-cognizable. Judge Newman has appealed to the D.C. Circuit, where MI has filed an amicus brief supporting her case, joined by seven distinguished scholars and practitioners in areas relevant to the Federal Circuit’s jurisdiction. We explore the history of similar investigations and the impermissible assault on due process that would result if the court doesn’t at minimum order the transfer of the case to another circuit. It's a completely unprecedented constitutional violation at the intersection of Article III and due process. 

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Tim Rosenberger is a legal fellow at the Manhattan Institute.

With thanks to law school associate Dino Marino.