There’s No Excuse. 39 Years of Judicial Excellence Rewarded with Degrading Judicial Abuse
My father subscribed to the New York Times and Daily News. When I was growing up, I read his copy of the Daily News. In Junior High School and thereafter I added the Times. This has been a great way to start the day for me ever since.
At least until recently. Today, the news on domestic, national, and international levels can ruin anyone’s day. Fortunately, for those of us engaged in some manner with the legal world, we could escape by delving into case law and legislative developments.
That is until very recently. The chief judge of the Court of Appeals for the Federal Circuit and two other judges have adopted tactics to remove one of their judges that only Donald Trump would be proud of. They’ve been lying about and mistreating the judge whom they apparently think has been too critical of them in her many dissents and won’t kowtow to the chief judge’s desire to get rid of her. I know what you’re thinking: that can’t be true. I felt the same way but soon saw the grim reality.
Seeing what the chief judge and her collaborators have done and been trying to do to Judge Newman has been sickening. Their actions have been directed solely at removing Judge Newman without being concerned about getting or telling the truth.
Anyone who knows or has been in contact with Judge Newman today is impressed with her knowledge and mental acuity. I can guarantee that no one outside the Federal Circuit thinks her mental capabilities are less than they were or are deficient.
So why do the chief judge and her cohorts claim that they are so?
I’ve had two federal clerkships: one with a district court judge in the Southern District of New York and the other with a circuit judge in the Court of Appeals for the Second Circuit. I came away with great respect for them and also for federal judges in general and their institutions.
However, as a result of clerking and later in practice, I became a legal realist. Judges are not robots applying the law taught in law school. They act like the human beings they are. Over the years of talking with judges, I realized that dissents are the only negative report card they get that they care about. And they generally don’t like them.
So much so, that some courts have adopted an approach where some opinions are not to be treated as precedents or cited in future cases. Why? Because the cases have been stripped of issues that caused or would cause differences of opinions on the panels and generate dissents. It shows how much judges dislike dissents, at least from their own opinions. So much so that they decided, probably reluctantly, that they had to remove these stripped-down cases as precedents.
Well, Judge Newman is known for her dissents. These dissents can be strongly worded because, especially for patents, she has been there since the beginning and feels strongly about their proper role. A role that shouldn’t be destroyed by current case law.
It’s not surprising that the removal of her dissents would be appreciated or even very much appreciated by some judges.
Moreover, the removal of Judge Newman as a judge apparently would please the chief judge. Judge Newman gets more positive critical attention than the chief judge. She has refused to kowtow to the chief judge’s efforts since the beginning to become a senior judge or later resign. And her dissents are causing some internal discontent that the chief judge would like to be able to remove and get credit for.
The problem is there are no legal or factual grounds to remove Judge Newman. So, the chief judge in effect created facts, grounds, and procedures to remove Judge Newman effectively for years if not permanently without her ability to challenge the actions before a neutral forum. Moreover, I would not be surprised if the chief judge thinks Judge Newman’s removal will be a good example to anyone else on the Federal Circuit who wants to oppose her in the future.
So why are the other two judges joining the chief judge? Are they afraid of what the chief judge might do to them if they don’t? Are they willing collaborators? Or are they both afraid and collaborators?
Time will tell.
How? Because their actions have left no course of action available to Judge Newman to expose the facts and get any justice other than to bring a state court defamatory judgment action. While there might be some actions that are barred, there are some actions which I think she could bring. And in that case, the depositions under oath and possible court testimony will be very helpful in telling Judge Newman and all of us why these things were done. (Ironically, that body of defamation law has been rejuvenated by Donald Trump).
So, what are the reasons they give to put Judge Newman through this administrative hell? One is that she has had some trouble with the technology in her office. In this world of digital citizens, there are many senior citizens with technology issues. This is not a reason to remove a judge.
Another is that Judge Newman takes too long to write her opinions. Not that the quality of her opinions is lacking, which one would think is the crucial question. Dissents take longer than majority opinions as a rule. And she has more dissents than any other judge. Also, historically taking a long time has happened before. One reason Justice Oliver Wendell Holmes wrote so many opinions was that the Chief Justice gave him more cases and opinions to write because in his view the other justices took too long to write theirs (and they weren’t writing dissents). No one tried to kick them off the Court.
Because I might not know all the objectionable actions, I asked Judge Newman to list such actions against her so I could respond to them here. To my surprise, she sent the following listing and a text with her responses.
She had no help with it. (I removed some typos.) She was not expecting that I would publish them. Until they came, I had not intended to distribute or publish what I expected to be a listing with no text. However, when I read them, I realized there was no need for me to go beyond what she had written. Moreover, I thought the world should see what the unvarnished text of a “mentally disabled” judge looks like. Here it is with her permission:
Judge Pauline Newman:
(1) My improper secret removal as an active judge. The Judicial Council of the Federal Circuit removed me from all new appeals, in secret proceedings. Litigation looms, but precedent shows that finality for any adjudication is years away. However, the Judicial Council implemented its judgment in March, and I have been excluded from all hearings, now scheduled through July. Thus, my colleagues on the Federal Circuit have achieved their goal of removing me as an active judge, before conducting the removal processes required by law. The injury is not only to me and balanced adjudication by the judges of the Federal Circuit but to the public’s understanding of judicial probity and integrity.
(2) The refusal to transfer this complaint to another circuit. Judge Moore denied my request to transfer this action to another circuit, as the statute contemplates. Thus, Judge Moore is in the position not only as a complainant but also as an investigator, prosecutor, witness, and adjudicator. And although the Rules require her recusal at this stage, she has not done so. The due process requirement of an unbiased tribunal is violated. Litigants have the right to have their cases heard by the judges who have been appointed by the President and confirmed by the Senate. Neither the Judicial Disability Act nor the Judicial Conduct Rules permit removal of a judge by the other judges of the same court, unless the disability is established by proceedings set by law.
(3) The non-existent heart attack. The proposed disability recited in Judge Moore’s complaint is a heart attack and fainting episode. See Complaint, March 24, 2023 (“In the summer of 2021, Judge Newman, at the age of 94, was hospitalized after suffering a heart attack and having to undergo coronary stent surgery, “and that in 2022″ Judge Newman fainted after an argument”). However, I never had a heart attack. I was not hospitalized, did not undergo coronary surgery, have no stent, and did not faint after an argument.
No support was provided for these allegations. Nonetheless, Judge Moore ordered me to disprove them. I saw no sound reason to undergo X-rays or other probes of every vein and artery in my body, searching for stents, of which there are none. And there are no hospital records of a non-existent hospital stay. The further statement that I fainted after an argument is equally false. Nonetheless, no correction, no apology, has been made. Requiring me to disprove unsupported allegations is contrary to basic notions of due process.
(4) The new Orders for neurological and neuropsychological examinations. On May 16, these different disabilities were announced, although I have not been told how such aspects relate to ability as a judge. They do, however, conform to Judge Moore’s threat of burdensome consequences if I did not immediately step down as an active judge. None of these Orders relates to the quality of my judicial work.
(5) Judge Moore complains that I take too long to write opinions. I do take longer than some of my colleagues, although others have taken as long or longer. It does take longer to write a dissenting opinion, for it must be impeccable in fact, law, and reasoning since it criticizes other judges. Dissents are also important to adjudication because they require the judges in the majority to shore up their reasoning and further explain their rulings, for the benefit of the parties and those to be bound by precedent. My colleagues have succeeded in eliminating my occasional criticisms of their products.
(6) The Federal Circuit’s official website is an improper forum for one-sided advocacy. On May 16, the court placed on its website a collection of anonymous defamatory and even laughable attacks. I was given no opportunity to respond on that official forum.
The most outlandish item in these new Orders is the recitation that I confer with Judge Markey’s ghost to decide how much time I have to vote on a panel opinion. If some anonymous source indeed voiced this theory, it surely was intended as a joke. Its presentation by Judge Moore (along with other anonymous untruths) as evidence of mental incapacity, is not a joke.
(7) The improper subpoena and depositions of my law clerks. The court subpoenaed and deposed three law clerks, swearing them to secrecy. I was not asked or even advised, and although the law clerks have respected the secrecy, this invasion of my chambers to obtain private information is unacceptable. A court should preserve high standards of integrity, not sink to the lowest. This penetration by the chief judge into the relationship between judge and law clerks taints the integrity of adjudication.
Thereafter Judge Moore moved one of my law clerks from my chambers to another judge. Although I knew that this clerk was uncomfortable with the ongoing turmoil and had offered him the opportunity to resign without an adverse record. This transfer to another judge was without discussion with me, and without any arrangement for the transition of his work. My inquiry to Judge Moore about a replacement clerk received no response.
(8) Other aspects of the Orders are also incorrect. Judge Moore makes much of a complaint by my then paralegal/JA that one of my law clerks “contacted” him at home one night. The “contact” was a text message sent at night, containing work for the following day. This event is presented as demonstrating that I cannot manage my chambers and must be removed from my judgeship. This criticism is unreal. My chambers operated quite well and routinely until Judge Moore interfered by moving the paralegal to her staff, subpoenaing my law clerks, and removing my chamber’s central computer. The court refused to return or provide access to the computer, although I needed its information for the Financial Disclosure and Travel reports that were due on May 15. I complained several times, but the computer still has not been returned.
The court also accuses me of paranoia, in wondering whether my communications have been hacked. The judiciary’s administrative arm is constantly warning us about hacks and scams, and the Federal Circuit frequently tests our awareness. It cannot be paranoia to follow their advice and exercise caution, particularly when uninvited connections and “chats” appear on the screen.
FINAL COMMENTS. Litigants have the right to have their cases heard by judges who have been duly appointed by the President and confirmed by the Senate. Neither the Judicial Disability Act nor the Judicial Conduct Rules permit the removal of a judge by the court to which the judge was appointed before the judge’s disability is established in accordance with the procedures set by statute.
I hold my judicial office as a sacred trust between the nation and myself. I would immediately retire if I were unable to perform at the highest level of competence. I am fortunate in having a long and healthy life. I am devoted to serving the nation with integrity. My colleagues’ sudden assault, and the tactics they are employing to destroy me, my reputation, and my work, are beyond my understanding.
End of Judge Pauline Newman’s text.
So that’s it. We have been very fortunate to have Judge Newman sitting on the Federal Circuit from the beginning. Let’s work together to get her back on it.
Some thoughts above on what is happening in the Federal Circuit.
Feel free to send me any comments.
Hugh C. Hansen
Professor of Law
Founder & Director, IP Institute & IP Conference
Named “One of the 50 most influential people in IP in the world,” by Managing IP Magazine (multiple times). MIP Magazine also characterized Prof. Hansen as an “IP provocateur” and “ringmaster who pulls together one of the IP world’s must-attended events.”
“The Culture of the Public Domain: A Good Thing?” published in The Sir Hugh Laddie UCL Lectures, Intersentia, p.111 (U.K.)
U.S. Supreme Court, Amicus Brief, Matal v. Tam, https://www.scotusblog.com/wp-content/uploads/2016/12/15-1293-amicus-respondent-Professor-Hugh-C-Hansen.pdf
Fordham IP Conference Commemorative Video: https://youtu.be/9z4qYoL_-_w
UK Judge: “Prof. Hansen has been personally responsible for bringing together judges and practitioners from all over the world to speak to one another for decades. By doing so, Hugh has done more single-handedly for the improvement of justice in many countries, than anyone else I know. He has had a profound effect.”