This post was originally published at the Volokh Conspiracy.
Of late, the media has fixated on judicial ethics—for certain judges, at least. Regrettably, many of these stories fail to put the accusations in context. In some situations, judges took actions that were actually consistent with the rules, or were not-clearly inconsistent with the rules. Still, self-professed experts find fault with unwritten rules. In other cases, judges have made good-faith mistakes based on misreading byzantine codes, and promptly agreed to correct those errors. Some of the allegations border on frivolous, but disfavored judges still get placed under the microscope. Throughout all of this breathless reporting, there has not been a single allegation of an actual conflict of interest between a judge and a party that would result in recusal. To quote Justice Breyer, there has been nothing "underhanded." At most, the claims focus on the nebulous appearance of impropriety standard, which can mean just about anything.
Yet, at present, we may be witnessing serious judicial misconduct that involves an actual conflict of interest. And the Washington Post does not need to fly a swat team of reporters to Amarillo to investigate. I speak, of course, about the Court of Appeals for the Federal Circuit.
Now, I do not have any dog in this fight. I know little about patent law, other than the fact that the Supreme Court routinely reverses the Federal Circuit. Chief Judge Moore was a professor at George Mason, but I never took any classes with her. And, as best as I can recall, I've never even seen Judge Newman. Indeed, she only popped on my radar when I was calculating which judges were eligible to take senior status. Newman was born in 1927, was appointed to the Federal Circuit in 1984, and became eligible for senior status in 1996. But the almost-96-year-old has never taken senior status–and that decision has created problems for her colleagues.
According to Judge Moore, Judge Newman is taking a really long time to resolve cases–in some situations, more than a year. (To be frank, Judge Newman is performing at a faster clip than some Biden-appointed judges who are five decades younger.) On the surface, Judge Moore is trying to pressure Judge Newman to take senior status. As a general matter, senior status judges can still hear cases–but those assignments are at the discretion of the Chief Judge. And if Newman were to take senior status, then Moore and her successors could simply prevent Newman from hearing other cases. The remedy being sought is stark: Judge Moore, and her colleagues on the Federal Circuit, are trying to prevent any future cases from being assigned to Judge Newman. Indeed, Judge Moore has already stopped assigning new cases to Newman, who remains an active status judge. If Judge Moore succeeds, Judge Newman would remain an Article III judge in name only. To put it bluntly, Chief Judge Kimberly Moore is engaging in a stealth impeachment of Judge Pauline Newman.
Newman is now represented by the New Civil Liberties Alliance. And NCLA sent a letter to Moore. I realize the facts here are complex, and contested. I'll avoid opining on the merits. Rather, I want to focus on the apparent conflict of interest.
Every federal circuit has a "Judicial Council." That council includes some circuit judges, as well as some district court judges, from that circuit. (The Federal Circuit has no district court judges, so only circuit judges sit on that council.) If a misconduct complaint is filed against a district court judge in a particular circuit, it is understood that circuit court judges from that circuit can impartially resolve the conflict. After all, circuit court judges have to review the decisions of district court judges all the time. Most circuit judges never actually even see district court judges–except, as John Roberts once observed, in the D.C. Circuit, where all judges have to share a cafeteria.
However, when a misconduct complaint is filed against a circuit court judge, there will often be a potential conflict, or at least awkwardness. Specifically, circuit judges may not be comfortable to resolve a case against their colleague. They sit together regularly, for decades at a time. Partiality can always be questioned. Therefore, a mechanism exists in which the Chief Judge of the circuit can ask the Chief Justice of the United States to reassign the matter to another circuit. That way, the issue can be impartially adjudicated. This process is not uncommon. Over the past decade, misconduct complaints against circuit judges from the Fifth, Sixth, and Eleventh Circuits were transferred to other circuits.
Yet, Chief Judge Moore has not, to date at least, moved to transfer Newman's case to another circuit. This decision is especially problematic due to the nature of the allegations. Here, we are not dealing with a misconduct complaint from a litigant, or private citizen, who objects to something the judge did on bench, or in public. Rather, the allegations here concern actions that Judge Newman has taken during the opinion writing process. Other than the final date on which an opinion is actually published, the public has no knowledge about how the sausage is made. We do not know when drafts were circulated. We do not know how long judges took to make and revise edits. And we do not know whether complicated legal issues made the process take longer. The only people who have this evidence would be the fellow judges of the circuit, including Judge Moore, and court staff. Yet, Judge Moore purports to decide whether there was misconduct. She is the fact-witness, the fact-finder, and the adjudicator. There is an apparent conflict of interest.
Finally, there is another issue lurking under the surface. If Chief Judge Moore succeeds in pushing her colleague to take senior status, a new vacancy would open up for the Biden Administration. The patent bar is, from what I've heard, very clubby. And there is no blue slip delay. I'm sure there is a list of attorneys waiting to fill that seat. Judge Moore, by pushing out her colleague, is opening a seat for someone else. Judges should have no role in picking their successors. Nor should judges have a role in creating vacancies on their court, in which more-congenial nominees can assume the seat. And I don't put much stock in the fact that Moore is a Republican-appointee, and we currently have a Democratic president. Judge Newman has suggested that this misconduct process is in retaliation for her disfavored views on patent law.
Chief Judge Kimberly Moore cannot be the judge, jury, and executioner of Judge Newman.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at email@example.com.