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 too physically or mentally disabled to continue 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.

Judge Newman has challenged her suspension and submitted reports that showed her mental acuity was unusually high for her age. Nevertheless, she is still suspended from her duties and has been suspended longer than any federal judge in history. The D.C. Circuit heard her case (where MI also filed a brief) and dismissed for a bizarre procedural issue.

Judge Newman is now asking the Supreme Court to review her case. The Manhattan Institute has joined the Buckeye Institute and the Committee for Justice on a brief supporting her petition. We argue that the Constitution provides one way to remove a federal judge: impeachment. Impeachment is a deliberative, public process requiring bicameral action and a supermajority in the Senate. This cumbersome process was chosen by the Framers for a reason, and it helps maintain the independence of the judiciary. Judge Newman was de facto impeached in a secretive process that violates those principles. The Supreme Court should take the case to help ensure an independent judiciary.

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

Trevor Burrus is a legal policy fellow at the Manhattan Institute.