A judgeship is a position of public trust. Judges are stewards of the people they serve. 

Right now, 96-year-old Federal Circuit Judge Pauline Newman, who joined the bench nearly 40 years ago, is embroiled in a rare public dispute with her Federal Circuit colleagues about her fitness to serve. This controversy has larger implications for judicial ethics. Questions about judicial fitness will continue to arise, as judges live longer and serve longer – perhaps beyond their capacity to efficiently exercise their judicial duties. 

In March, the Federal Circuit Judicial Council, led by Federal Circuit Chief Judge Kimberly Moore, announced an inquiry into Judge Newman’s health, alleging that Judge Newman might suffer from a disability that precluded her from effectively exercising her judicial duties. The Judicial Council cited evidence that Judge Newman seemed confused in interactions with staff; that she was significantly slower than her colleagues at handling cases and issuing opinions; and that she violated the confidentiality provision of the Employee Dispute Resolution (EDR) Plan. 

Throughout the spring, Judge Newman refused to participate in the inquiry into her health, refusing to accept service or submit to a medical evaluation by a neutral physician. Judge Newman’s cases were reassigned, further straining the Federal Circuit’s workload. The inquiry was expanded to include whether Judge Newman’s refusal to participate constituted evidence of judicial misconduct.

Then, Judge Newman sued her colleagues, alleging violations of the First, Fourth, and Fifth Amendments and demanding that her caseload be restored. She also indicated that the Rules for Judicial Conduct and Judicial Disability Proceedings surrounding disability inquiries and medical evaluations were unclear, because they did not delineate the process for providing investigators with medical records or submitting to a medical evaluation.  

Judge Newman later provided some medical documentation by a doctor she selected. While the medical documentation was filed under seal, her complaint states that a physician indicated that Judge Newman’s “cognitive function is sufficient to continue her participation in her court’s proceedings.”

In June, due in part to Judge Newman’s noncompliance with the disability inquiry, the Judicial Council dropped the inquiry into Judge Newman’s disability status, narrowing the scope of the inquiry to whether Judge Newman’s noncompliance in the proceedings against her was evidence of judicial misconduct. In July, Judge Newman and her colleagues were ordered to participate in mediation. 

Because Judge Newman is an Article III federal judge, she enjoys life tenure, or tenure “during good behaviour.” While federal judges can be investigated and disciplined – including through public sanctions and temporary reassignment of cases, pursuant to the Judicial Conduct and Disability Act of 1980 – they can only be removed by congressional impeachment, which is exceedingly rare. 

We occasionally hear about judicial misconduct inquiries – either when a judge steps down to evade an investigation, or when an investigation becomes public. Much less attention is paid to the disability provision of the Judicial Conduct and Disability Act. While some number of judges engage in misconduct, most judges experience the wear and tear of aging. Yet neither judiciary policies nor federal laws have kept pace with modern medicine. While it was once expected that a judge’s colleagues or family members would gently encourage them to step down when they were no longer fit for the rigors of judicial service, that is not an effective mechanism to ensure that judges who enjoy life tenure will accept their own fallibility when the time comes. 

This controversy is an example of the constraints of current judiciary policies, absent a change in the law that would extend the bounds of judicial discipline. Yet dropping the inquiry into Judge Newman’s alleged disability sets a poor precedent, as this issue will continue to arise. Laws and policies must be clarified so judges understand the implications of withholding medical information that implicates their fitness to serve. A judge’s right to privacy stops when their health affects their ability to do their job. Yet unlike other industries, where medical evaluations are conducted by neutral physicians selected by the employer, sometimes with input from the employee, the judiciary has no such clear process. 

Judge Newman’s actions affect those around her – including the litigants whose cases were delayed on her calendar and the colleagues whose workloads increased as a result of her unwillingness to step down and make way for a new appointee. Delayed rulings have significant implications for litigants’ livelihoods and liberty, yet litigants rarely get a window into behind-the-scenes judiciary machinations. They have no recourse if the judge handling their case does not do so in a timely fashion. While the Federal Circuit handles patent litigation rather than, for example, criminal matters, what will stop the next federal judge, who presides over cases implicating litigants’ liberty, from concealing medical information while mishandling their cases?  

In order to foster public confidence in the judiciary, judges presiding over cases must be fit to serve. A judgeship is a rigorous position. When a judge is no longer able to efficiently execute their judicial duties, considering the consequential decisions they make not just about individual litigants’ cases, but about legal precedent, it is time to step down. 

Furthermore, when elderly judges cling to their seats on the bench, it precludes new, young, diverse judges from taking the bench, who could provide a diversity of viewpoints. This creates a pipeline-to-the-bench issue. 

Congress and the federal judiciary should take this opportunity to revise both the Judicial Conduct and Disability Act, and the rules for judicial conduct and judicial disability proceedings, so that they are prepared when the next situation like Judge Newman’s arises. Several other areas for reform should be explored, including term limits or mandatory retirement ages, which have been implemented in many states and the District of Columbia; or routine medical evaluations for all judges. 

A judgeship should be considered a job like any other – subject to the same laws, regulations, and expectations that we place on others in powerful positions of public trust. We should hold judges to the highest ethical standards, which means ensuring that those who interpret and enforce our laws are fit to serve. Failing to enforce judicial accountability decreases public confidence in the judiciary. No judge should serve forever.

 

Aliza Shatzman is the President and Founder of The Legal Accountability Project (LAP), a nonprofit aimed at ensuring that law clerks have positive clerkship experiences while extending support and resources to those who do not. Aliza earned her JD from Washington University School of Law in St. Louis, MO in 2019. Aliza regularly writes and speaks about judicial accountability. She has been published in numerous forums, including the Harvard Journal on Legislation, Yale Law & Policy Review, UCLA Journal of Gender & Law, NYU Journal of Legislation & Public Policy, Administrative Law Review, Above The Law, Law360, Slate, Ms. Magazine, and Balls & Strikes. Reach out to Aliza at [email protected] to learn more about LAP’s efforts to transform the clerkship application process–and the legal profession–for the next generation of attorneys.