I’m going to share what should be an uncontroversial statement: titles matter. We’re inundated with information constantly and, probably more often than we’d like to admit, skim article titles to get the gist of what’s going on. Even when we go the extra mile to read the damned thing, titles frame our understanding of the words to follow. Take, for example, “Paragon Of Virtue Clarence Thomas Has Been Given Half Million In Value Off The Record And It Totally Hasn’t Impacted His Judging. Not One Bit. Nope.” Based on the title of the story, it probably has something to do with Clarence Thomas, judicial transparency, and ethics. Heads should have turned if it was instead titled “Longest Serving Black Member Of The Supreme Court Faces Ethical Inquiries” because, even if facially true, that title misses key points about what the story is actually about — Clarence’s blackness is incidental to the underlying ethical issues. This may read as a particular egregious hypothetical, but the press coverage of Pauline Newman’s fight against the Federal Circuit circumventing the constitutionally prescribed impeachment protocol has unduly focused on her age for three years now. Many of these stories sandbagged the heart of the matter, the judiciary’s process of self-policing and lack of due process, which has left the public less informed and federal judges in a more precarious position.
Pauline Newman is not some provincial jurist whose age is the most important thing about her. She’s Pauline fucking Newman. Further, her age isn’t even an essential part of the drama. I’d understand the age framing if federal law included a mandatory retirement age, as in states like New York. Were that the case, the subject’s age should be front and center. But there isn’t. Headlines could call her, “First Judge Appointed To The Federal Circuit,” “Longest Serving Active Federal Judge,” or “IP Award Namesake Jurist.” Instead, lazy headlines can’t stop pointing to her age. See “Colleagues want a 95-year-old judge to retire. She’s suing them instead.”, for example. It would be one thing if it was just the Washington Post, but there’s been uniform ball-missing from the press. Just a small sampling: CBS New’s “Supreme Court declines to take up suspended 98-year-old judge’s bid to hear cases again“, Bloomberg Law’s Nation’s Oldest Judge Claps Back as She Seeks Reinstatement, even NPR’s Why A 98-Year-Old Federal Judge Is Asking The Supreme Court For Her Job Back. Even when the title would be otherwise sufficient, they still find a way to throw her age in, take Reuters’ US Supreme Court Won’t Hear Bid By Suspended Judge, 98, To Keep Her Job. It is a break in norm to refer to jurists this way. No one wrote the headline “Man, 72, Pens Majority Opinion Overturning Roe v. Wade” back in 2022.
As much as it pains me to admit FedSoc did a thing correctly, Josh Blackman had the sense to lead with a title that actually addressed the matter at hand: The Stealth Impeachment of Judge Newman in the Federal Circuit. David Lat displayed his journalistic know-how and good taste with “‘Integrity’: An Interview With Judge Pauline Newman” over at Original Jurisdiction.
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Moving forward, the focus of these stories should be on what this kind of stealth or shadow impeachment means for unpopular or discounted federal judges:
This is speculative and may have even been tongue-in-cheek, but I defy you to find the fault in the reasoning behind the method. If judges can get repeatedly suspended by their peers unless you go to your suspending court’s cherry-picked experts — Newman went to several leading experts and their findings were rejected — there’s no check on getting rid of judges you don’t like on party grounds.
As Professor Vermeule replied to his own Tweet: “‘Any judge who thinks Obergefell was rightly decided is not only wrong, but insane’ — the reigning standard in 2036?”
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These are ripe conditions for chilling behavior; there’s already been a noted drop in Federal Circuit dissents since Newman’s bootleg impeachment. What check is there if the Chief Judge pressures persuades a panel to agree with them on paper even if they actually believe the targeted judge is fit to do their job? There doesn’t seem to be one after the Supreme Court declined to take up Newman’s case. That’s the actual story — the judge’s age is epiphenomenal to that threat. The reporting done by legacy media sites should have made that clearer.
Earlier: Pauline Newman Speaks: ATL Interviews The Judge Who’s Fighting To Do Her Job
Federal Circuit Dissents Plummet After Pauline Newman’s Ersatz Impeachment
Against The Doctor’s Orders: Judge Pauline Newman Suspended For A Year By Her Coworkers
Court Of Appeals Snubs Newman From Even Reading Their Emails
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 boat builder who is learning to swim and is interested in rhetoric, Spinozists and humor. Getting back in to cycling wouldn’t hurt either. You can reach him by email at [email protected] and by Tweet/Bluesky at @WritesForRent.