The Investigation and Suspension of Judge Newman

This past March, Chief Judge Kimberly A. Moore started an investigation into Federal Circuit Judge Pauline Newman. This investigation was launched to address concerns regarding Judge Newman’s ability to perform her duties given her age. Judge Newman is 96 years old, making her the oldest jurist of the Circuit Court.[1] She has been widely respected amongst her peers and colleagues throughout her long career, with one calling her “the most beloved colleague on our court.”[2] Some have claimed the investigation was spurred on due to reports of Judge Newman having heart problems.[3] The details of this accident are not clear. A doctor on the case claimed medical records regarding her cardiac arrest incident would help to determine her current mental fitness and ability to perform her job, and, therefore, Judge Newman’s council would be required to submit them for investigation. However, this investigation proved to be prolonged and tiresome for many, as Judge Newman and her team were reluctant to participate.[4]

The court order requested three things that would be used to assess her cognitive ability. First, it required Judge Newman to hand over all medical records pertaining to her cardiac arrest and fainting incident occurring on March 24th of this year. The order also asked for all records within the past two years relating to “attention, focus, confusion, memory loss, fatigue or stamina.”[5] Lastly, it required her to participate in a video interview with the Committee behind the investigation.[6] The order gave her until the 5th of May to provide the documentation and conduct the interview. What proceeded was a back and forth of disagreements and filings that went on for months. Judge Newman’s council repeatedly declined requests and refused to comply with multiple orders made by the council regarding the specific guidelines and demands. They constantly pushed back new rulings and would not comply with the requests of the council. This series of disagreements and lack of progress went on until June 1st, when the Committee came to the conclusion that Judge Newman’s outright refusal to comply with their court order and the subsequent demands greatly impaired their ability to conduct an informed examination regarding her cognitive abilities.[7]

Finally, Judge Newman agreed to comply with the original order’s requests. After conducting the appropriate testing and investigation procedures, the Committee found, “overwhelming evidence of behavior by Judge Newman that provided a reasonable basis for concluding that she may suffer from a disability that renders her unable to discharge the duties of her office.”[8] Along with evidence collected by the methods outlined in the original order, additional interviews were conducted with signed affidavits by 20 other Court staff who worked alongside Judge Newman. In these interviews, the Council found that the staff has consistently had “deeply troubling interactions” with the Judge, with her showing signs of significant cognitive impairment, such as “memory loss, confusion, lack of comprehension, paranoia, anger, hostility, and severe agitation.”[9] These issues experienced by the staff go beyond what originally was thought to have been the cause of concern with Judge Newman’s behavior. In the original order, there was no mention of anger, hostility, paranoia, or agitation. One of her assistants wrote the Judge has been “having trouble recalling events, conversations, and information just days old and having trouble comprehending basic information that court staff communicate to her.” [10] These observed behaviors are increasingly concerning and highlight how Judge Newman’s age could negatively impact her job performance.

On September 20th, 2023, the Council’s order was published, therefore suspending Judge Newman to hear any new cases for one year.[11] They also determined she did not have good cause to refuse to participate in the required testing, evaluations and interview back in May. The Council decided after the investigation that her refusal constituted misconduct.[12]

Federal judges have a lifetime tenure, however, people are starting to question the effects of such policy. More specifically, how a lifetime tenure could negatively influence a judge’s ability to conduct a fair and speedy trial. These questions have led to inquiries about similar-aged public figures’ ability to perform their duties. Situations where public figures are criticized on the basis of age are becoming increasingly common. Prominent politicians, such as Mitch McConnell, have been ridiculed online for instances where their cognitive abilities have been shown to be declining. While constructive criticism is to be expected for one who holds a public service job, people online have taken it to greater heights by harassing older judges, politicians, and other public figures solely on the basis of age. This case has given support to those who oppose older people holding high positions of power. Cognitive impairment can occur at any age, and not all those who are old should be dismissed solely on their age without proper evidence of cognitive decline. Judge Newman’s suspension is an example of how investigations into Judge’s cognitive abilities can be used to help ensure they are able to perform the duties of their jobs to the best of their ability. The suspension of Judge Newman will open the door for other older actors in the legal system, and their performance, to be called into question on the basis of age.