Inexorable, inevitable, and regrettable are three words that come to mind with publication from the Report from Special Committee of the Federal Circuit (composed of Chief Judge Moore and Judges Prost and Taranto) containing, inter alia, their recommendation that suspension of Judge Pauline Newman be extended for yet another year.
The basis for the sanction remains the same: that Judge Newman's continued refusal to submit to the Special Committee's appointed physicians is judicial misconduct. The Report is 95 pages in length and sets forth those spurned physicians' justifications for arguing that their examination (and not Judge Newman's own qualified physicians') are required. Those arguments include that "[t]he Committee finds that this extensive record leaves no room for doubt: Judge Newman, now 98 years old, needs a full neuropsychological battery of tests in order for the Committee to determine whether she is capable of performing the functions of an active federal judge" (the reference to the Judge's age not being close to coincidental). The Report strongly suggests that the report by Judge Newman's physician (Dr. Rothstein) on her neurological health is less robust that presented in her attorney's arguments. The Report also cast doubts on Dr. Carney's opinion regarding Judge Newman's neurological fitness to serve. And the Report asserts that "[a]ll three" of the Committee's experts "explained, in detail, that, contrary to the assertions made by Judge Newman's expert, Dr. Filler, it is not an accepted diagnostic approach in the field to use a CT perfusion scan to determine whether or not an individual suffers from a cognitive impairment" (supplemented by additional allegations of professional incredibility on Dr. Filler's part, including mistakes regarding Judge Newman's fainting incidents). The Report also includes evidence from the Judge's medical records of "memory impairment" issues as early as 2022 and that the Judge made "significant errors" in recounting her own medical history to her doctors in 2023 and 2024.
Of the evidence and testimony from "non-professional" witnesses, the Report mentions the "more than a dozen affidavits from court employees from nearly every court department" as raising "serious concerns" regarding the Judge's neurological health. This evidence, while helping to paint a picture of the Judge being in cognitive decline is less relevant first for being lay testimony on a medical issue for which the witnesses are not competent to opine and second because the issue is not whether prudence suggests the Judge's neurophysiological state be assessed, but rather the Committee's insistence that Judge Newman comply with their demands that their physicians do the assessing.
The summary section of the Report ends by placing the blame for the current circumstances on the Judge, stating that "[y]ears of litigating this dispute could have been avoided if Judge Newman had acknowledged in 2023 that the neurologist she selected—Dr. Ted Rothstein—recommended that she have the more detailed neuropsychological testing and if she had followed his advice and acquiesced in having that testing."
The Report's conclusions contain three recommendations (characterized elsewhere in the Report as "recommended sanction for continuing misconduct"):
(i) that there is a reasonable basis to order full neuropsychological testing by a provider selected by the Committee;
(ii) that Judge Newman's continued refusal to cooperate with the Committee's investigation by undergoing that testing constitutes continuing misconduct; and
(iii) that the Judicial Council should renew the sanction of suspending Judge Newman from hearing cases for a period of one year.
As Judge Newman has maintained, following these recommendations could be considered to be a de facto impeachment of an Article III judge regardless of how it is presented.
The remainder of the Report provides an extensive recapitulation of the procedural and evidentiary background of this matter, specifically directed at evidence that casts doubt on the conclusions drawn by Judge Newman's experts, the validity of the testing they did perform, and whether they themselves evinced as much faith in those conclusions than has been represented they did in various court filings and briefs both before the Committee and in the lawsuit brought by Judge Newman in the D.C. District Court and Circuit Court (see "Judge Newman Files Appeal with D.C. Circuit"). Regarding the Committee's own experts, the Report provides their professional imprimatur on the insistence that Judge Newman submit to examination by them as "independent experts" based at least in part on the deficiencies alleged against the physicians picked by the Judge herself. Finally, the Report attempts to rebut the anecdotal evidence by those who have heard Judge Newman speak during the term of her suspensions by stating that "[e]vidence suggesting that Judge Newman can speak coherently and fluidly does not undermine the need for testing."
Unless the D.C. Court of Appeals finds in Judge Newman's favor it can only be presumed that she has spent her last day as an active Judge on the Federal Circuit bench.
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