MIKE DAVIS: Federal court sets dangerous precendent against 99-year-old judge

The U.S. Supreme Court recently wrongly declined to hear U.S. Circuit Judge Pauline Newman's appeal from the U.S. Court of Appeals for the Federal Circuit. What has happened to her is outrageous, unconstitutional, dangerous, and unacceptable.

For several years, Newman has endured an unconstitutional suspension imposed by her colleagues on the basis of her supposed lack of mental competency—which anyone who has spent any time around Judge Newman knows is absurd. She may be 99, but she is still sharp—and can work circles around her junior colleagues.

The suspension bars Newman from hearing any cases and amounts to an unconstitutional impeachment and removal from office. The Supreme Court set a dangerous precedent by declining to take up the appeal.

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Newman has served on the Federal Circuit since 1984. Several years ago, she suffered some brief fainting spells. On that basis, Federal Circuit Chief Judge Kimberly Moore, the villain here hiding under a judicial robe, convened a panel of fellow Federal Circuit judges to determine whether Newman was competent to serve. The problem with this scheme is plain: separate from the Constitution giving lifetime tenure to federal judges to ensure their independence and granting Congress the sole power of impeachment, these judges handpicked by Moore were potential fact witnesses. The Federal Circuit is based in Washington, D.C. All judges serve in the same building. The judges on Moore's panel, which, incidentally, included Moore herself, observed Newman regularly. In other words, Moore assembled a kangaroo panel of judges who had knowledge of all relevant facts ahead of time. This farce is like a jury consisting of a dozen witnesses to an alleged crime sitting in judgment of the accused. Such an arrangement is plainly unconstitutional, as was Moore's rigged panel.

Newman submitted to examinations by three independent experts who evaluated her separately. All determined her to be of sound mind and fully capable of performing her judicial duties. Yet this was insufficient for Moore and her kangaroo court, as the suspension continues indefinitely. Moore has tried to minimize the egregious nature of the conduct by claiming, for instance, that Newman was permitted to attend court Halloween parties. Federal judges are lifetime-appointed to decide cases, not to eat ice cream. No amount of spin from Moore can remove the stench of Newman's mistreatment.

Chief judges appropriately have some leeway to briefly remove judges from judicial duties during the pendency of misconduct allegations. Samuel Kent, a judicial disgrace from Texas, was suspended while the court investigated whether he had sexually abused staffers. The evidence was overwhelming, and Kent — facing certain impeachment — resigned in disgrace and went to federal prison. The indefinite suspension of Newman, however, resembles nothing of the eminently reasonable exercise of judicial power in Kent's case. Newman has always displayed the highest integrity and has done everything possible to demonstrate her soundness of mind. Nothing is good enough for Moore and her sham panel, and Newman is now consigned to banishment thanks to the Supreme Court's shameful inaction.

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The House is the sole body vested with the power to impeach judges. The Senate is the sole body vested with the power to remove judges after a trial. Chief judges hold no such power under the Constitution, yet Moore has effectively accomplished an impeachment and removal. While Newman still receives her salary, she is barred from performing the most essential task of a federal judge: hearing cases. Where does this end?

U.S. Circuit Judge Laurence VanDyke, a worthy Supreme Court candidate should a vacancy arise, is a frequent dissenting voice on the radical Ninth Circuit Court of Appeals. Could leftist Chief Judge Mary Murguia decree that VanDyke is cognitively deficient and thus incapable of serving? Can any chief judge handpick a panel to rubber-stamp a determination of mental deficiency and force out another judge? No limiting principle governs what was done to Newman. If Moore can do it to her, any chief judge can do the same to any other judge, even when Congress has shown no inclination to impeach that judge.

Some judges richly deserve impeachment. U.S. District Judge Eleanor Ross of Georgia, for instance, is a judicial disgrace who allegedly used her chambers like a room at Motel 6 to have loud sex with a married Atlanta police commander. Ross, who is also married, committed this disgraceful act many times within earshot of her aghast clerks. Yet she received a pitiful private reprimand for her judicial colleagues. She is not suspended and continues to hear cases despite deservedly being a laughingstock.

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Newman, by contrast, has never done anything to dishonor the judiciary, yet finds herself permanently barred from fulfilling her primary responsibility: deciding cases. A judiciary where Eleanor Ross can preside over cases while Judge Newman cannot is one in utter disarray. The Supreme Court could have stopped this circus but chose silence. That disastrous decision could carry grave consequences for many judges, and many years, to come. Truly shameful.

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