My co-blogger, Josh Blackman, has previously written an excellent post about what might be viewed as the "stealth impeachment" of Judge Newman in the Federal Circuit. Judge Newman has been suspended due to her alleged failure to "cooperate" with a Special Committee appointed by the Chief Judge of the Federal Circuit, which was investigating Judge Newman's capacity to perform her work. Judge Newman has sought federal judicial review of whether this lengthy suspension violates her constitutional rights. But, thus far, she has been denied any judicial review.
Yesterday, I joined former judges Susan Braden, Janice Rogers Brown, Randall Rader, and Thomas Vanaskie in an amicus brief (written by experienced appellate lawyer Richard Samp) urging the D.C. Circuit to direct that Judge Newman's claims be reviewed on their merits. Here's the opening of our brief explaining why Judge Newman is entitled to her day in court:
Judge Pauline Newman has served with distinction on the United States Court of Appeals for the Federal Circuit since its creation in 1984. Her many dissents may on occasion irritate some of her judicial colleagues, but those opinions have routinely been vindicated by the U.S. Supreme Court—including as recently as this year. Doctors who have examined her recently have all concluded that she remains cognitively sharp, an opinion shared by many who have witnessed her recent public appearances. There has been no finding that Judge Newman is disabled or otherwise incapable of performing her judicial duties.
Judge Newman has nonetheless been effectively removed from office by Appellees [e.g., the Chief Judge of the Federal Circuit et al.]. In response to her decision to decline a medical examination by doctors of their choice, Appellees suspended her from all judicial activities—including hearing cases, writing opinions, and voting on petitions to hear cases en banc. The original order imposed a one-year suspension, but Appellees later renewed the suspension for another year and made clear that the suspension would continue indefinitely until Judge Newman acquiesced to their examination demand. She responded by filing suit in district court, alleging that she has been removed from office in violation of her constitutional rights. But rather than addressing the merits of those constitutional issues, the district court largely dismissed Judge Newman's claims on the ground that judicial review was precluded.
That holding cuts against the strong presumption that litigants are entitled to have their federal constitutional claims heard in a federal court. The presumption can be overcome only by clear and convincing evidence that Congress meant to foreclose review, and there is no such evidence in this case. Judge Newman is entitled to her day in court.
Moreover, the facts alleged by Judge Newman state a valid claim. The Constitution assigns to the U.S. Senate alone the power to remove Article III judges from office. By suspending Judge Newman for an indefinite period and thereby effectively removing her from office, Appellees are usurping that power. That usurpation represents a serious challenge to the independence of federal judges that the Framers sought to preserve.
