Article III federal judges have life tenure, or tenure “during good behaviour,” once they have been nominated by the President and confirmed by the U.S. Senate. Many take senior status in their later years, continuing to hear a reduced caseload. Occasionally judges retire to pursue careers as law firm partners, mediators, or arbitrators. Sadly, too many judges will die in office. Modern medicine may enable us to live longer, healthier lives. Yet we cannot discount the risk that judges – the most powerful members of our profession – will insist on remaining on the bench until long after they are fit to handle the rigors of federal judicial service.
Something rare is happening right now in the Federal Circuit, the circuit in Washington, D.C. responsible for the U.S.’s patent litigation. Several things, in fact. First, Judge Pauline Newman, age 95, is under investigation, pursuant to the Judicial Conduct and Disability Act, the federal law that governs judicial discipline. The Judicial Council of the Federal Circuit has alleged that Judge Newman suffers from a disability that precludes her from exercising her judicial duties. Second, the complaint is public. And now, Judge Newman is suing her judiciary colleagues, including Chief Judge Kimberly Moore, her boss—and the judge leading the investigation into her health.
Pursuant to a March 24, 2023 judicial order, In Re Complaint, Chief Judge Moore confirmed an investigation into Judge Newman’s health, detailing various issues. Judge Newman heard fewer cases than her colleagues between 2021 and 2023. She issued fewer opinion. She incurred substantial delays in issuing rulings. The order also explained that, once these matters were reassigned to other judges, they were handled swiftly. Chief Judge Moore convened a special committee to investigate further.
Pursuant to an April 7, 2023 order, the special committee concluded there is “a reasonable basis to conclude [Judge Newman] might suffer a disability that interferes with her ability to perform the responsibilities of her office.” The committee recommended that Judge Newman undergo medical testing and evaluation within four days. The order also indicated that Judge Newman had thus far refused to accept service in the proceedings against her.
The rules for judicial disability and judicial conduct proceedings define a “disability” as a temporary or permanent impairment, physical or mental, rendering a judge unable to discharge the duties of their judicial office. Pursuant to Rule 13(a), while medical testing can be recommended, it is not mandatory. However, a judge’s refusal to comply can be considered when reviewing the totality of the allegations in the complaint against them.
On May 10, 2023, Judge Newman filed a complaint in the U.S. District Court for the District of Columbia against her Federal Circuit colleagues, alleging various constitutional violations under the First, Fourth, and Fifth Amendments. Judge Newman argued that she has been and will continue to be irreparably harmed by her inability to hear cases and publicly defend herself. She also claimed to have liberty and property interests against forced medical and psychiatric evaluation.
While judicial misconduct investigations under the Judicial Conduct and Disability Act rarely become public, we do occasionally hear about judges stepping down amid misconduct investigations. Much less attention is given to the equally important disability provision, which, when implemented correctly, ensures that judges who are no longer fit to serve, do not endanger the public by continuing to hear cases. Yet neither the constitution, nor judiciary policies and procedures, nor existing federal laws have fully grappled with the issue of elder judges serving beyond when they should, refusing to give up their black robes for other valuable, but slightly less rigorous, avenues of public service. While some judges engage in misconduct, all judges advance in age. Some number of them will develop either age-related health issues or simply the psychological wear-and-tear that comes with advanced age.
Legal scholars have long argued that the intent of life tenure for Article III federal judges was to ensure unbiased judicial decision-making, uninfluenced by partisan considerations like reelection or reappointment. Yet recent research suggests that, in fact, federal judges retire or take senior status in strategically partisan ways.
Think of your elderly parents or grandparents in their eighties or nineties. Would you want them to be in charge of such enormously consequently decision-making, rendering opinions every day that affect litigants’ livelihood and liberty? Delayed rulings can be particularly harmful to litigants – whether individuals or businesses – who rarely get a window into the behind-the-scenes machinations of the courts. Yet we owe it to the public to ensure that every litigant gets a fair shake before the court. A basic tenet of this public trust is that the judges hearing their cases are mentally fit to serve.
This controversy in the Federal Circuit opens the door for several potential areas of judiciary reform. First, term limits – thereby ensuring that both political parties have the opportunity to replenish the bench with fresh blood and fresh ideas. Second, a mandatory retirement age, similar to those enforced in more than thirty states and the District of Columbia for local judges. Third, regular medical evaluations for judges.
The federal judiciary should ensure reasonable accommodations for disabled judges who are otherwise fit to serve – just like it should ensure reasonable accommodations for law clerks and judiciary employees who seek them. However, for judges like Judge Newman, who has enjoyed a lengthy and storied judicial career, but now appears unfit to serve, we must balance her interest in remaining a judge against the interests of the numerous litigants who appear before the court. These litigants have been and will continue to be irreparably harmed by delayed rulings and court backlog. We must also consider the interests of Judge Newman’s judicial colleagues in the Federal Circuit, as well as her staff – law clerks and others – who may be forced to pick up the slack as a result. Both federal judiciary leadership and Congress must develop processes and procedures to ensure that judges who can no longer handle the rigors of federal judicial service, do not remain on the bench 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 Aliza.Shatzman@legalaccountabilityproject.org to learn more about LAP’s efforts to transform the clerkship application process–and the legal profession–for the next generation of attorneys.
