CORRECTION: Francis Shen, then an associate professor at the University of Minnesota Law School, conducted research on the ages of federal judges. Incorrect information appeared in an earlier version of this story.
A growing dispute over efforts to force the retirement of a 95-year-old federal judge is giving the public a rare glimpse into how the justice system is grappling with age issues on the bench.
Age questions have been hanging over Washington lately, with doubts about whether an octogenarian president is fit for re-election and whether the nation’s oldest serving senator should finish her term.
The judicial branch is not without its own issues on the matter, as colleagues of federal appeals court judge Pauline Newman try to push her away due to concerns about her mental state.
Anonymous court workers alleged that Newman was “just losing it mentally,” with some describing her as “paranoid,” according to court documents.
A formal investigation is being led by three of her fellow justices after Newman pushed back on pressure to retire earlier this year, with renewed efforts to curtail her court role and demand that she submit to a cognitive test.
“Based on its investigation to date, the committee has determined that there is a reasonable basis to conclude that Judge Newman may suffer from a disability that interferes with her ability to carry out the responsibilities of her office,” the judges wrote in an unsigned order earlier this month.
Since then, the fight has only gotten worse. Newman this month sued her colleagues to block the investigation, insisting that she is still fit to serve and that their investigation is unconstitutional.
“At all relevant times, Judge Newman was and is in good physical and mental health,” Newman’s attorney wrote in the complaint. “She has written majority and dissenting opinions across the gamut of cases before her Court, voted on motions for rehearing en banc and joined in en banc decisions of the Court.”
Newman Chambers and his attorney did not return requests for comment.
The investigation comes as age questions are being raised in the other two branches of the federal government.
Sen. Dianne Feinstein (D-Calif.), 89, is facing heightened concerns about her health after a months-long absence due to complications from shingles.
The age of President Biden, the longest-serving president in US history, has been the source of attacks from his rivals. Biden would be 86 at the end of a second term.
But unlike the two elected branches, the terms of federal judges are not limited, with one exception: removal by the House and conviction in the Senate. The exploit has only happened eight times in US history, according to the Federal Judicial Center.
The lifetime term — designed to ensure independence — allows federal judges to otherwise sit for as long as they wish.
In his lawsuit against the three-judge panel, Newman argued that their investigation circumvents those constitutional protections, also challenging their characterizations of his mental state and job performance.
“The orders and threats of the defendants constitute an attempt to impeach plaintiff – and have already unlawfully removed her from office – without impeachment and in violation of the Constitution,” Newman’s attorney wrote in the complaint. .
It’s a stark contrast to how his colleagues have portrayed Newman’s conduct. By March, half of his fellow justices active on the bench had expressed their concerns to Newman directly or attempted to do so, court documents show.
Chief Justice Kimberly Moore then took matters into her own hands, opening a formal inquiry on March 24 as part of the Federal Judicial Conduct and Disability Proceedings. Before registering the order, Moore showed a draft to Newman, who again refused to retire.
The investigation is still ongoing, but the three-judge panel has already barred Newman from taking on any new cases in court, even though she retains her title and salary.
They conducted more than 20 interviews with anonymous court workers, who described Newman’s behavior as “paranoid”, “agitated” and “bizarre”, according to the documents. Among other things, employees alleged Newman needed help with basic tasks, claims the court tapped his phones, and repeatedly appeared to have trouble retaining information in conversations.
“While it’s hard to say this, I think Judge Newman is just losing it mentally,” a court worker said, according to the documents.
One of Newman’s chamber employees allegedly invoked his Fifth Amendment right against self-incrimination during his interview. After another was given the opportunity to move out of Newman’s apartments while continuing his job, Newman allegedly threatened to have him forcibly evicted and arrested.
Nominated in 1984 by former President Reagan, Newman, who turns 96 next month, became the first person to be appointed directly to the federal circuit.
She is the oldest active federal judge, but the bench as a whole generally tends to age. In 2020, the average age of federal judges was 69, more than at any time in U.S. history, according to a study led by Francis Shen, who at the time was an associate professor at U.S. Law School. ‘University of Minnesota.
As the justices age, speculation is rife about when they might retire and who might replace them.
These battles are even more intense on the Supreme Court, with periodic calls for a judge to retire at a politically convenient time. Just before announcing his presidential campaign, Florida Governor Ron DeSantis (right) this week openly discussed which vacancies he could fill if elected.
But for Newman, who sits on the Federal Circuit Court of Appeals, which focuses on patent and other specialty litigation, the pressure to step down came from within the court. It’s a notable departure from Newman’s longstanding reputation as a “great dissenter” in the court.
“Judge Newman’s dissents have enriched the patent dialogue within the Federal Circuit,” Daryl Lim, associate dean of Penn State Dickinson Law, wrote in a 2017 article analyzing Newman’s case.
“A few have managed to gain traction with the Supreme Court, his colleagues and academics,” he continued. “Others are thrown on the key to a future tribunal and the true measure of their influence lies in the hands of history. All are now part of its institutional memory, and they provide an unvarnished roadmap of the issues. where she saw room for a course correction.
Newman’s reluctance to give in to increasing pressure on his abilities is nothing new. Newman had told Lim that she had faced sexism when she was appointed, almost 40 years ago now.
“When I was made a judge, a number of people spoke out, including some I thought were my friends, saying they didn’t think I could do the job,” Newman said at the time. .
This story was updated at 8:53 a.m.
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