Q&A Lawyer Liability and Ethics: Dispute Among Federal Circuit Judges Highlights Issues With Aging

by Joseph Brophy for the Maricopa Lawyer, a publication of the Maricopa County Bar Association 

An unusual dispute among judges from the Federal Circuit lead to Judge Pauline Newman suing her fellow judges for barring her from hearing or deciding cases and for attempting to force Judge Newman to submit to medical testing to determine whether she has a physical or mental disability that prevents her from discharging her duties.  You can file this column under “getting old sucks.”

Judge Newman is 95 years old.  Depending on who you ask, she is unable to complete her work in a timely fashion, has memory problems, exhibits bouts of paranoia and is abusive to court staff.  Judge Newman disputes these claims.  In March 2023, a three-judge special committee of the Court of Appeals for the Federal Circuit was appointed to investigate Judge Newman.  When the committee attempted to question Judge Newman, she invoked the 5th Amendment right to remain silent.  The committee ordered Judge Newman to submit to a neurological evaluation and neuropsychological testing to determine whether she suffers from a disability and removed her from sitting on any future panels.  She refused to undergo testing or to provide her medical records for review.

Apparently the judge is a believer in the old adage: “the best defense is a good offense.”  On May 10, 2023, she sued each member of the three-judge committee and the entire judicial council of the Federal Circuit in the United States District Court, District of Columbia.  Judge Newman alleges that the Federal Circuit’s actions violate Article III of the Constitution (federal judges may only be removed by impeachment), the First Amendment (unlawful prior restraint), the Fifth Amendment (removal without due process) and the Fourth Amendment (unlawful search arising out of the ordered medical testing).  The Honorable Christopher Cooper drew the short straw and will be presiding over this fiasco.  Best of luck, judge.

While a longer life is generally regarded as a blessing, there is a case to be made that people were physically not meant to live into their 90s and beyond.  The body breaks down, but often it long outlasts the mind.  It calls to mind Andy Rooney’s quip: “It’s paradoxical that the idea of living a long life appeals to everyone, but the idea of getting old doesn’t appeal to anyone.”  When this happens to senior government leaders, there are real world consequences.  A very recent example is Senator Diane Feinstein’s extended absence from the Senate.  Her apparent cognitive issues have caused delays in the appointment of federal judges.

The lifetime tenure of federal judges exacerbates the problem of aging and job performance.  Lifetime tenure addresses the important issue of trying to immunize judges from the pressures of politics.  However, it is the product of a time when people died around age 60 and no one made it to 95.  Judge Newman’s situation raises an uncomfortable question: in a profession where lifetime tenure is the rule, how many federal judges are suffering from the kind of physical or cognitive impairment that impacts their ability to perform their duties?  Who, if anyone, is monitoring this problem?

In the years leading up to her death, Justice Ruth Bader Ginsberg’s capacity to serve was the subject of much debate.  Justice William Douglas stayed on the bench for ten months after a debilitating stroke before retiring in 1975, resulting in his colleagues informally agreeing to nullify any decision in which he was the deciding vote.  Justice Thurgood Marshall at times did not have control of all his faculties in his last years on the court.  Justice Hugo Black was suffering from memory problems when he left the bench before dying of a stroke two days later.

The list above is a substantial fraction of a small sample of judges (Supreme Court justices) from the last 50 years.  We know about the issues those justices have because of their high-profile positions.  It would be naïve to think that Judge Newman’s situation is not far more common in the lower courts than what is reported.  The problem spilling out into the open because of Judge Newman’s lawsuit is what is unusual.

One would be hard pressed to find anyone who believes that courts in general and the federal courts in particular move quickly enough.  It is not unusual for a federal court to take over a year to rule on a motion.  There is a very real human cost to that kind of delay.  Perhaps what appears likely to be an ugly fight over Judge Newman’s situation will prompt Congress and the judiciary to consider how widespread is the problem of judges remaining on the bench beyond their capacity to serve and whether changes need to be made to address it.

About Joseph A. Brophy

Joseph Brophy is a partner with Jennings Haug Keleher McLeod in Phoenix.  His practice focuses on professional responsibility, lawyer discipline, and complex civil litigation.  He can be reached at jab@jhkmlaw.extimahosting.com.

The original article appeared in the July 2023 issue of Maricopa Lawyer and can be viewed here: 

https://jkwlawyers.com/wp-content/uploads/2023/07/230706-ML.pdf.

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