On Saturday, April 22, 2023, Josh Blackman, a constitutional law professor at the South Texas College of Law Houston, an adjunct scholar at the Cato Institute, and the President of the Harlan Institute, in an opinion piece stated that Chief Judge Kimberly Moore cannot serve as the judge, jury, and executioner of her colleague, Judge Pauline Newman. This is in relation to the complaint of Chief Judge Moore against the latter alleging that Newman is unfit to fulfill her duties as a circuit court judge and takes a long time to resolve cases.

In a report by the AbusiveDiscretion, it stated that specifically, the allegations against Judge Newman are in regard to her slow issuance of opinions which affects the administration of justice. Moreover, Judge Moore mentioned that she heard stories from colleagues and others at the court that caused her to have concerns about the 95-year-old circuit judge’s overall ability to serve. The report also indicates that Chief Judge Moore was willing to resolve her grievance with Judge Newman if she agreed to take senior status, but Newman refused to consider the same.

As a general rule, senior-status judges can still hear cases. However, those assignments are under the discretion of the Chief Judge. According to Blackman, if Judge Newman were to accept the senior status as requested, Chief Judge Moore and her successors could simply prevent the former from hearing other cases. To date, Judge Moore has already stopped assigning cases to Judge Newman, and if Judge Moore succeeds with the complaint, the former would just remain an Article III judge only in name. In other words, the current complaint of Chief Judge Kimberly Moore seems to engage in a stealth impeachment of Judge Pauline Newman.

Blackman continues by stating that Judge Moore is under a conflict of interest. In the current process, every Federal Circuit has a Judicial Council. That council includes some circuit judges, as well as some district court judges, from that circuit. If a misconduct complaint is filed against a district court judge in a particular circuit, then it is understood that circuit court judges from that circuit can impartially resolve the conflict.

The problem lies when a misconduct matter is filed against a Circuit Court Judge, for there will be a seemingly potential conflict or at least awkwardness because circuit judges may be uncomfortable resolving cases against their colleagues. As they regularly sit with each other for decades, partiality can always be an inquiry.

A mechanism to avoid such a scenario does exist. This can happen when the Chief Judge of the circuit can ask the Chief Justice of the U.S. to reassign the case to another circuit. This is a common practice made by the Fifth, Sixth, and Eleventh Circuits for misconduct complaints against circuit judges. Unfortunately, Judge Moore has not availed of such action and this can be problematic considering the nature of the complaint. She serves as the fact witness, the fact-finder, and the adjudicator in the said matter. Thus, an apparent conflict of interest seems to float. The fact that the public has no knowledge of the technicality of the allegations such as the duration of what is considered a “long time” of issuing an opinion or how long drafts are circulated raises concern since it is believed that the only people who have evidence of the misconduct of Judge Newman would be the fellow judges of the circuit, including Judge Moore.  

Blackman stated that If Chief Judge Moore succeeds in pushing her colleague to take senior status, a new vacancy would open up for the Biden administration.

“Judge Moore, by pushing out her colleague, is opening a seat for someone else; Judges should have no role in picking their successors nor should judges have a role in creating vacancies on their court, in which more-congenial nominees can assume the seat,” Blackman said.


Source: The Volokh Conspiracy