Can Pauline Newman get a damned break? Yesterday, her lawyer argued the claim that used to be taken as a given: Article III judges are pretty damned hard to get rid of without their consent, bad behavior or a death certificate. Put differently, people have been referring to their gigs as lifetime appointments for a while now and no one has batted an eye. For reasons that I do not pretend to know, the oral argument instead became fixated on Newman’s lawyer’s musings about judges who, for reasons inapplicable here, are unable to carry out their duties. Strange line of questioning when the case concerns a judge who is able to do her duties so well that she still managed to get a dissent affirmed by the Supreme Court during her stealth impeachment.
Law360 has coverage:
“Your theory leaves no room at all,” said U.S. Circuit Judge Patricia A. Millett. “This is the statute not just about misconduct, but about disability. If you do the impeachment process, you’re out. There’s no temporary impeachment. And you are, in fact, convicted of a crime. You’re going to lose any pension you might have, any benefits. You lose everything.”
She continued, “The notion that Congress would say, ‘Well, if someone has a disability, so they can’t function for six months or a year, we’re going to declare them a criminal and destroy their entire position. And that somehow the Constitution forced that choice seems, to me, an extraordinary proposition.”
Fascinating, but fucking irrelevant. We should all be able to recognize a red herring when we see one — deal with the able-bodied jurist fighting to do their damned job for the last two years who is standing in front of you rather than conjuring what if scenarios that are complete departures from the facts of the case. And while it was a brilliant rhetorical flourish for Judge Millett to frame most people’s common sense understanding of the conditions to get rid of Article III judges as an “extraordinary proposition,” she’d be better off referring instead to “the actual text of the Constitution.” Read it for yourself — the Constitution doesn’t have some magic catch-all for judges to axe their colleagues. It might have felt yucky to hear Newman’s counsel Greg Dolin name death, retirement and impeachment as the only conditions for removal contemplated by the Constitution, but at least it was rooted in the document.
But hey, let’s not be too harsh. Maybe Judge Millett’s memory went a little hazy on this part of the Constitution. Memory is a tricky thing to keep track of, but I’ve got a lead on someone who knows a few neurologists that can check for recollection, judicial competency and the like: Pauline Newman. Several actually, since her panel’s baseless accusations forced her to go to multiple brain experts, one that directly challenged the panel’s misreading of his report and another that proved with pictures that Newman’s brain looks like it belongs to someone decades younger than her.
Judge Millet’s gut check that it is too extreme for the Constitution to require “declaring a judge a criminal” before you can force a judge out of their seat might feel right to her, but it isn’t the job of a judge to evaluate the Constitution based on vibes and feelings. If that is what the Constitution requires, tough luck. If you feel bad about what the Constitution requires, it is totally fair game to rally support for an amendment to be made. That’s the solution, not a lone panel doing all sorts of process fuckery in the name of “policing their own.”
There’s also a big IF on whether it actually requires Congress to “declare them a criminal.” Judge Millett spoke conclusively, as though judicial impeachment requires the same “High Crimes and Misdemeanors” standard, but there’s at least a colorable argument that this isn’t actually the case. The language in Article II is pretty clear: moving to impeach the President, Vice President, or any civil officers is necessarily connected to conviction (in the Senate… which isn’t actually a criminal court) for a high crime or misdemeanor. But the term of judges in Article III is different. Article III impeachment is anchored by the much more vague “good behavior” standard. While most assume judicial impeachment tracks the Article II language, there’s scholarship supporting the idea that “good behavior” creates another, lesser, and non-criminal justification for removal.
Under this interpretation a judge that falls in to a coma for an extended period of time can be impeached for — you guessed it — being in a coma for an extended period of time. Whatever “good behavior” entails, it surely includes being capable of and actually doing the job assigned to you. If this becomes the basis for removing the judge from office and they wake up from the coma able to do the job, they can be nominated by the President and confirmed by the U.S. Senate a second time. Not sure how this would impact their pensions or benefits, but its an otherwise easy solution with no constitutional compulsion to declare them a criminal.
Now that that’s all nice and dealt with, can the judges ask questions about what would happen if a judge was accused of being physically unfit because they had a heart attack but then went to a doctor to prove that that never happened and then when the accusations were proved demonstrably false no one got in trouble for effectively lying under oath or if a judge was accused of yelling at a clerk when they were reasonably frustrated about their computer being seized from her office or if a judge had their cases stripped from them because they refused to get an examination but then when they got the examination the panel decides those weren’t good enough… you can go on and on. You still get to scratch that “if” itch, but these questions actually correspond to… you know… actual issues in dispute. Like Article III requires.
DC Circ. Fears Newman Atty Would Impeach Disabled Judges [Law360]
Earlier: A Lifetime-Appointed Judge Was Accused Of Not Being Able To Do Her Job. She Brought Receipts.
Pauline Newman Speaks: ATL Interviews The Judge Who’s Fighting To Do Her Job
Pauline Newman’s Doctor Has Some Choice Words For The Judicial Panel That Ruled Against Her
Huge Development In Pauline Newman’s Case: The Test Results Are In!
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who is learning to swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.