(This post originally ran on Oct. 29, 2024, but was updated ahead of the Apr. 24 arguments in Newman v. Moore.)

In a prior post, we wrote about how the complaint identified by the Federal Circuit against Judge Pauline Newman should be transferred to another circuit for review and adjudication.

Why is that? Because the judges you work most closely with should not be a part of the council that determines whether or not you’ve committed misconduct.

Transfers can happen under Rule 26 of the Rules for Judicial-Conduct and Judicial-Disability Proceedings:

“In exceptional circumstances, a chief judge or a judicial council may ask the Chief Justice to transfer a proceeding based on a complaint […] to the judicial council of another circuit. The request for a transfer may be made at any stage of the proceeding before a reference to the Judicial Conference […]. Upon receiving such a request, the Chief Justice may refuse the request or select the transferee judicial council, which may then exercise the powers of a judicial council under these Rules.”

Of course, Chief Justice Roberts could decline the transfer. But we think he should be asked — and that such a transfer request should be granted.

What’s more, according to a Dec. 2024 Judge Newman filing (pp. 25-26 of this PDF):

“This was the first time in history […] that a complaint against a circuit judge which proceeded to the committee investigation stage was kept within the same circuit. In all previous instances, complaints against circuit judges which were not dismissed after preliminary review by the relevant circuit’s chief judge were […] transferred to another circuit’s judicial council.”

That’s an important precedent the Federal Circuit should have followed here.

So not only should there be a transfer if a (serious) complaint is filed against a circuit judge (or a district judge), we also maintain that if it takes a judicial council longer than a year to adjudicate a complaint after a special committee is appointed, the transfer should be automatic, as detailed in our prior post.

Updated numbers (4/22/25):

Transferring the Newman complaint would not be without precedent. Here’s a list of those we have links for, with circuit judges in bold and district judges in italics:

— Complaint against D. Mass. Judge Ponsor transferred from the First Circuit to the Fourth Circuit (2024)
— Complaint against D. D.C. Judge Walton transferred from the D.C. Circuit to the Third Circuit (2024)
— Complaint against C.I.T. Judge Vaden transferred from the Court of International Trade to the Seventh Circuit (2024)
— Complaint against CA11 Judge Pryor and N.D. Ala. Judge Maze transferred from the Eleventh Circuit to the Second Circuit (2021)
— Complaint against two unidentified circuit judges transferred from unknown circuit to the Third Circuit (2020)
— Complaint against then-CADC Judge Kavanaugh transferred from the D.C. Circuit to the Eleventh Circuit (2019)
— Complaint against then-CADC Judge Kavanaugh transferred from the D.C. Circuit to the Tenth Circuit (2018)
— Complaint against CA9 Judge Kozinski transferred from the Ninth Circuit to the Second Circuit (2017)
— Complaint against D. D.C. Judge Roberts transferred from the D.C. Circuit to the Tenth Circuit (2016)
— Complaint against CA5 Judge Jones transferred from the Fifth Circuit to the D.C. Circuit (2013)
— Complaint against CA9 Judge Kozinski transferred from the Ninth Circuit to the Third Circuit (2008)

Per the 2006 Breyer Committee report, Committee staff “identified eight instances since 1980 in which the Chief Justice designated a circuit judge to handle a complaint in another circuit pursuant to the intercircuit assignment statute,” p. 121.

That makes 19 transfers in total. We asked SCOTUS on Sept. 30 and again on Dec. 17, 2024, if they keep track of them to see if others have taken place. We await a response.