Home
/
RELIGION & LIBERTY ONLINE
/
When a Judge Is Forced Off the Bench
When a Judge Is Forced Off the Bench
Dec 6, 2025 8:04 PM

Attempts to remove Judge Pauline Newman, a brilliant jurist but a thorn in the sides of her colleagues, are both unconstitutional and deeply unfair. The consequences if successful will prove devastating not only to her legacy but also to due process itself.

Read More…

“Bury the lead!” is certainly unusual editorial advice but possibly the only good strategy for an essay on the vagaries of the federal court system. You never want your readers to know that they might find the subject matter of your essay less than exciting. But you’re now reading the rare article on the United States Court of Appeals for the Federal Circuit that promises that this court really is interesting—or at least can be. There probably aren’t many readers who’ve even heard of it. But the court’s judges’ chambers, which overlook the White House, are now the setting of an unprecedented controversy that has prompted one of the country’s most well-respected judges to pen an equally unprecedented open letter to the Wall Street Journal criticizing her colleagues. Depending on how the controversy plays out, it could represent a significant afront to our constitutional system and the rule of law.

Depending on how you count them, there are five federal courthouses in Washington, D.C. Lawyers for Judge Pauline Newman of the Federal Circuit were just over a mile from her chambers when on June 27 of this year they filed a lawsuit in a federal trial court on her behalf against Chief Judge Kimberly Moore and two other Federal Circuit judges, seeking to have Judge Newman’s judicial duties reinstated. plaint asserts that when her efforts to convince Judge Newman to retire were unsuccessful, Chief Judge Moore then turned to administrative mechanisms outlined in the 1980 Judicial Conduct and Disability Act to deny Judge Newman who, at 96, is the oldest active judge in the entire federal judiciary, the ability to perform her judicial duties. Judge Newman has asked the district court both to reinstate her to her judicial duties and to find that the Act is, at least in part, unconstitutional.

There peting theories as to why the chief judge wants Newman off the bench. One is that Newman is “totally disabled physically, and mentally petent.” Chief Judge Moore’s order. dated March 24, 2023, claims that she has “probable cause to believe that Judge Newman’s health has left her without the capacity to perform the work of an active judge” and that her presence on the court is “prejudicial to the efficient administration of justice.” Judge Newman, however, has produced significant evidence that is readily available to the public that she is in fact fit to discharge her judicial duties. Her own physician, a George Washington University neurologist, affirms her petency for the job. And experts in plex fields that make up the Federal Circuit’s jurisdiction, including the former chief judge of the court, confirm that there has been no perceptible decline in the quality, volume, or incisiveness of Newman’s published opinions. plaints against her, Newman says, are based on “most extraordinary fabrications and exaggerations.”

Clearly, Newman is not taking any of this lying down. The dueling orders, letters, and motions pertaining to proceedings are all available on the Federal Circuit’s website. Newman has even granted interviews (here and here) to the press. She has her own theories as to why the chief judge and other colleagues want her off the court. It is possible that the chief judge wants to create an opening for a presidential appointment, but Newman—by this time at the center of a barely contained constitutional crisis—isn’t buying it.

The U.S. Court of Appeals for the Federal Circuit was created in 1982 by the merger of a few preexisting courts. It has a unique but important jurisdiction that includes most issues relating to trademarks, copyrights, and patents. This is not the venue where culture war battles play out. There are no traditional “left and right” dividing lines on this court. It is a near impossibility that the Federal Circuit would ever be faced with questions relating to civil rights. It is, rather, where judges wrestle with some of the plex and difficult legal questions in the entire field. It is a vitally important court for the protection of private property, both because of its jurisdiction over intellectual property matters and its adjudication of issues relating to government takings. Almost all the judges have training as engineers and scientists in addition to legal training. Judge Newman, the first direct appointee to the court, is no different. She graduated from New York University School of Law only pleting a Ph.D. in chemistry at Yale and spending several years as a research scientist. She holds several patents herself that date back to that time in her career. Chief Judge Moore herself is an MIT-trained engineer.

Newman believes she has e the target of her colleagues’ attention because they “are tired of being told that they’re not perfect.” Her frequent dissents demonstrate an “understanding of … law [that] conflicts with that of many of her colleagues.” Without her dissents, the workload of Federal Circuit judges would decrease by 5%.

The subject matter of most of the Federal Circuit’s docket is plex that even most attorneys have difficulty parsing it. Applying the law plex and specialized scientific, medical, and technological questions requires a level of expertise in extra-legal fields that only specialized attorneys have. And the rulings of the Federal Circuit on these questions often e the law of the land, since so few cases are ever appealed to the Supreme Court and its unique subject matter jurisdiction means that a circuit split on many of these issues is not possible. Newman has, in fact, established herself as “an intellectual powerhouse” and is the author of majority opinions in some of her field’s seminal cases. She has also provided the intellectual framework through her frequent dissents for many other seminal cases when the Federal Circuit has been overturned by the Supreme Court. One judge has even noted that “Judge Newman is particularly well-known for her insightful dissents, which have often been vindicated by the Supreme Court” when it has “adopt[ed] essentially the reasoning of [her] dissent.” The judge affirming Newman’s stature and the value of her dissents? Chief Judge Kimberly Moore.

Judge Newman concedes that her reputation is already tarnished but has resisted the pressure to retire on principle. “If the judges on a court can just vote out someone they don’t like, for whatever reason … that’s not what the nation is entitled to.” Moore has assigned herself and two other judges to mittee to investigate plaint regarding Newman’s fitness that the chief judge herself initiated. The focus of that investigation has morphed from questions about Newman’s fitness into disciplinary issues owing to Newman’s refusal ply with mittee’s order to submit to a medical evaluation, despite having submitted a report from her own physician. So, in short: Chief Judge Moore herself filed the judicial equivalent of an plaint against Judge Newman. And then Moore appointed herself to mittee that is investigating her plaint. And when Newman objected not only to the substance of plaint but to the process of investigating it as well, Moore—as prosecutor, judge, and jury—took disciplinary action against Newman by suspending her from her judicial duties “with no time limit and with little heed for the regulations and case law.”

Federal judges enjoy lifetime tenure “during good behavior.” Once appointed by the president and confirmed by the Senate, these judges can only be removed from office via impeachment by Congress. This system was devised to insulate judges from political or popular influence. In 1937, frustrated with life-tenured Supreme Court justices standing in the way of New Deal legislation, President Franklin D. Roosevelt proposed a court-packing plan that would place justices on the court who would be more receptive to his political project. A similar scheme was floated again in 2021 as progressives anticipated the vulnerability of decisions key to political priorities like Roe v. Wade and Regents of the University of California v. Bakke, both of which have subsequently been overturned. The rule of law depends on the stability of the justice system, and the stability of the justice system depends on constancy and the apolitical nature of the courts. This is why it is not easy to remove a federal judge or to subject him or her to the political pressures that elected officials endure (and often apply).

No matter the motivation behind the actions of Judge Newman’s colleagues on the Federal Circuit, they have certainly denied her any semblance of due process. Potential jurors are excluded from juries when they have personal knowledge of events relevant to the trial—an eyewitness to a crime would never be allowed to serve as a juror in the prosecution of one accused of perpetrating it. And no person standing to lose or gain from a particular e of a trial could serve, either. Yet the members of the judicial council of the Federal Circuit sit like jurors determining Judge Newman’s fate despite clear conflicts that would justify excluding them from a jury sitting to consider a similar case. They have also done violence to the notion of the separation of powers spelled out in the U.S. Constitution. It is only Congress that can remove a federal judge from office through its impeachment power.

The independence of the judiciary is an innovation of the American constitutional order and has proved to be a largely effective safeguard for liberty. The system is not without flaws, but the judiciary has endured as an apolitical institution. The Constitution assigns distinct responsibility to two political actors—the president and senators—for the makeup of the federal judiciary. The fact that their elections almost always involve the discussion of judicial appointments is proof that at least the formal structure of the system has been preserved. The attempts to sidestep it through court-packing have been defeated. But if judges themselves can exert the type of pressure that has been placed on Judge Newman, the system will promised.

Despite procedural and due process concerns, the actions of the chief judge of the Federal Circuit have proceeded under color of statutory law, which Newman convincingly argues is unconstitutional. Newman’s service has been exemplary, and she is universally respected. The mark that this leaves on her record is tragic. But it may very well be that the greatest debt the nation owes to her is that she has resisted an unfair and (likely) unconstitutional effort to exclude her from office. We should all hope that the courts or Congress vindicate her—not only for the sake of justice but also because in so doing they will be vindicating and preserving our constitutional order and the rule of law.

Comments
Welcome to mreligion comments! Please keep conversations courteous and on-topic. To fosterproductive and respectful conversations, you may see comments from our Community Managers.
Sign up to post
Sort by
Show More Comments
RELIGION & LIBERTY ONLINE
Derek Chauvin guilty, but riots will hurt Minneapolis for generations
In Minneapolis, members of the clergy and Congress alike spent the weeks before Derek Chauvin’s conviction on all charges pouring gasoline on the fire of rioters’ rage. Rep. Maxine Waters, D-Calif., told rioters to e even “more confrontational” unless the jury convicted Chauvin of murder – ideally “first-degree murder,” a crime with which he was not charged. Meanwhile, Pastor Runney Patterson, standing alongside Al Sharpton, told Minneapolis’ Greater Friendship Missionary Baptist Church last month that if jurors didn’t return a...
The economics behind the COVID-19 baby bust
At the beginning of the COVID-19 pandemic, some academics predicted a “baby boom,” as couples found themselves locked down with nothing to do. But those familiar with economics knew differently – and the data have now backed us up. The coronavirus “baby boom” has turned into a “baby bust.” The CDC reported that U.S. births in the month of December 2020, nine months after the lockdowns began, fell by pared with December 2019. The same pattern is seen in state-by-state...
School shutdowns hurt struggling students, girls the worst: Study
In-person school closures due to COVID-19 lockdowns widened the gap between the rich and poor, a new study conducted by Oxford University has found. While young people of all demographic groups fell behind during the period of remote learning, those from the least educated homes were the hardest hit. Researchers studied elementary students from age 8 to 11 in the Netherlands, because they found the country best suited to endure the pandemic. Dutch schools test students twice a year, and...
The fallacy of capitalism’s ‘race to the bottom’
The Biden administration proposes a global minimum tax on corporations to end the “global race to the bottom.” Leaving aside the wisdom of letting France tax U.S.-based corporations, this phrase recalls one of the regnant canards of our time: Capitalism inevitably lowers living standards and grinds people down into poverty. The myth of the “race to the bottom” is among the multitudes of errors, distortions, and outright lies of the 1619 Project but has escaped notice, because so few recognize...
Kingdom economics: Work and trade as gift-giving
When reflecting on our economic action,we tend to be overly focused on one side of the exchange: our own benefit, our own profit, our own “piece of the pie.” Our consumer-centered culture happily affirms such an emphasis, routinely promoting a zero-sum vision of the economy and self-centered attitudes about vocation, daily work, and economic exchange. But when we take a step back, we see that our economic interactions also represent real relationships, each offering unique opportunities for love, service, generosity,...
Bishops: The Equality Act will destroy Christians’ careers
The bishops of the world’s oldest Christian church have condemned the proposed “Equality Act” – not just based on its threat to religious liberty – but also the danger it poses to Christians’ ability to make a living. The “Equality Act” could bar faithful Christians from serving their fellow citizens and improving the lives of people from all sexual orientations. The foundations of the Eastern Orthodox Church stretch back to apostolic times. In this country, the jurisdictions coordinate their work...
Rugged entrepreneurs: How the ‘frontier experience’ shapes economic cultures
In our efforts to spur economic growth and retain American dynamism, we tend to be overly consumed by surface-level tweaks to our economic systems. Yet economists continue to discover that the distinguishing features of flourishing societies are more readily found at the levels of culture. Deirdre McCloskey has emphasized the role of ideas and rhetoric, arguing that our newfound prosperity has e from piling brick on brick, or bachelor’s degree on bachelor’s degree, or bank balance on bank balance, but...
Foreign aid pays for Muslim imams to preach the government’s message
All government spending contains items that could best be described as “surreal.” In that category, a Western foreign aid program paid researchers to insert material into the sermons of Muslim imams. The UK allocated £795,463 in taxpayer funds ($1.1 million U.S.) for imams to preach about the dangers of second-hand smoke. Researchers gave anti-smoking talking points to the Islamic religious leaders of 45 mosques in the Mirpur area of Dhaka, Bangladesh, in the hopes of reducing indoor smoking. “These messages...
Explainer: the ‘global minimum tax’
Treasury Secretary Janet Yellen has said she plans to impose a global minimum tax on U.S. corporations, which she will coordinate with global leaders to stop “a destructive, global race to the bottom.” How will this work; what will it do to petitiveness; and is it constitutional? Here are the facts you need to know. What is a global minimum tax? A global minimum tax would see wealthy nations agree not to lower their tax rates on corporations that are...
The free market vs. the ‘Really Really Free Market’
Recently in Grand Rapids an old idea served as a catalyst for a munity event, the “Really Really Free Market.” This “market” was open to guests where they are free to give and take a range of goods provided munity members and organizations free of charge: Organizer MC Camp said munity-building event feels too good to be true to many, but represents local generosity. They encouraged people to ditch the idea of considering the event “charity” and focus more on...
Related Classification
Copyright 2023-2025 - www.mreligion.com All Rights Reserved