By Manny Marotta, FTC law clerk

A D.C. Circuit hearing on Thursday centered on the rare legal and constitutional questions surrounding the now-19-month suspension of 97-year-old Federal Circuit Judge Pauline Newman (right), who has been sidelined by her colleagues amid allegations of cognitive and physical decline. (The D.C. District had dismissed Newman’s challenge to her suspension last July.)

The court weighed arguments over whether the Federal Circuit judicial council’s placing of Newman on indefinite hiatus in Sept. 2023 violates her constitutional right to serve for life. Newman’s attorney, Greg Dolin, contended that she’s effectively been cast off without due process, as she performs no judicial duties these days beyond checking email. Dolin argued that being an Article III judge includes not just the title of being a judge but the substantive right to hear cases.

The panel, comprising Judges Millett, Pillard and Childs, pushed back, criticizing Dolin’s comparison of Newman’s treatment to that of judges accused of “high crimes and misdemeanors.” They noted that Dolin himself had admitted those comparisons were not legally dispositive.

“The [Supreme] Court in Chandler said that it was not unconstitutional for the judicial council to pause new assignments to a judge,” said Judge Pillard, asserting that suspending Newman’s duties, short of full impeachment, is constitutional. “We’re bound by [Chandler].”

Dolin also challenged the fairness of keeping the complaint within the Federal Circuit, calling for transfer to a different circuit, which Fix the Court has also been advocating for. “The people who are adjudicating the dispute […] have to be neutral adjudicators,” Dolin said. “[Judge Newman is] entitled to a [body] that is not conflicted.”

The court appeared unmoved. “Is doing an investigation […] a violation of due process?” Judge Millett asked. “Due process rights with respect to an investigator are very different than those with respect to an adjudicator. The people making the decision on the council are not the same as those doing the investigation.”

At the heart of the hearing was a question with no clear precedent: must a life-tenured judge be actively hearing cases? With no federal judge of Newman’s age having ever faced this level scrutiny, the court’s eventual ruling could set a standard for judicial fitness for nonagenarians and other aging jurists.