{"id":116554,"date":"2025-04-25T14:12:26","date_gmt":"2025-04-25T22:12:26","guid":{"rendered":"https:\/\/xira.com\/p\/2025\/04\/25\/d-c-circuit-judge-panel-uses-pauline-newman-oral-argument-to-flesh-out-advisory-opinion-on-comatose-judges\/"},"modified":"2025-04-25T14:12:26","modified_gmt":"2025-04-25T22:12:26","slug":"d-c-circuit-judge-panel-uses-pauline-newman-oral-argument-to-flesh-out-advisory-opinion-on-comatose-judges","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2025\/04\/25\/d-c-circuit-judge-panel-uses-pauline-newman-oral-argument-to-flesh-out-advisory-opinion-on-comatose-judges\/","title":{"rendered":"D.C. Circuit Judge Panel Uses Pauline Newman Oral Argument To Flesh Out Advisory Opinion On Comatose Judges"},"content":{"rendered":"
\"\"
(Photo by Bill O\u2019Leary\/The Washington Post via Getty Images)<\/figcaption><\/figure>\n

Can Pauline Newman get a damned break? Yesterday, her lawyer argued the claim that used to be taken as a given: Article III judges are pretty damned hard to get rid of without their consent, bad behavior or a death certificate<\/em>. Put differently, people have been referring to their gigs as lifetime appointments <\/a>for a while now and no one has batted an eye. For reasons that I do not pretend to know, the oral argument instead became fixated on Newman\u2019s lawyer\u2019s musings about judges who, for reasons inapplicable here, are unable to carry out their duties. Strange line of questioning when the case concerns a judge who is able to do her duties so well that she still managed to get a dissent affirmed by the Supreme Court during her stealth impeachment<\/a>.<\/p>\n

Law360<\/a> has coverage:<\/p>\n

\n

\u201cYour theory leaves no room at all,\u201d said U.S. Circuit Judge Patricia A. Millett. \u201cThis is the statute not just about misconduct, but about disability. If you do the impeachment process, you\u2019re out. There\u2019s no temporary impeachment. And you are, in fact, convicted of a crime. You\u2019re going to lose any pension you might have, any benefits. You lose everything.\u201d<\/p>\n

She continued, \u201cThe notion that Congress would say, \u2018Well, if someone has a disability, so they can\u2019t function for six months or a year, we\u2019re going to declare them a criminal and destroy their entire position. And that somehow the Constitution forced that choice seems, to me, an extraordinary proposition.\u201d<\/p>\n<\/blockquote>\n

Fascinating, but fucking irrelevant. We should all be able to recognize a red herring when we see one \u2014 deal with the able-bodied jurist fighting to do their damned job for the last two<\/em> years who is standing in front of you<\/em> rather than conjuring what if scenarios that are complete departures from the facts of the case. And while it was a brilliant rhetorical flourish for Judge Millett to frame most people\u2019s common sense understanding of the conditions to get rid of Article III judges as an \u201cextraordinary proposition,\u201d she\u2019d be better off referring instead to \u201cthe actual text of the Constitution.\u201d Read it for yourself \u2014 the Constitution doesn\u2019t have some magic catch-all for judges to axe their colleagues. It might have felt yucky to hear Newman\u2019s counsel Greg Dolin name death, retirement and impeachment as the only conditions for removal contemplated by the Constitution, but at least it was rooted in the document.<\/p>\n

But hey, let\u2019s not be too harsh. Maybe Judge Millett\u2019s memory went a little hazy on this part of the Constitution. Memory is a tricky thing to keep track of, but I\u2019ve got a lead on someone who knows a few neurologists that can check for recollection, judicial competency and the like: Pauline Newman<\/strong>. Several actually, since her panel\u2019s baseless accusations forced her to go to multiple brain experts, one that directly challenged the panel\u2019s misreading of his report<\/a> and another that proved with pictures that Newman\u2019s brain looks like it belongs to someone decades younger than her<\/a>. <\/p>\n

Judge Millet\u2019s gut check that it is too extreme for the Constitution to require \u201cdeclaring a judge a criminal\u201d before you can force a judge out of their seat might feel<\/em> right to her, but it isn\u2019t the job of a judge to evaluate the Constitution based on vibes and feelings. If that is what the Constitution requires, tough luck. If you feel bad about what the Constitution requires, it is totally fair game to rally support for an amendment to be made. That\u2019s the solution, not a lone panel doing all sorts of process fuckery in the name of \u201cpolicing their own.\u201d<\/p>\n

There\u2019s also a big IF on whether it actually requires Congress to \u201cdeclare them a criminal.\u201d Judge Millett spoke conclusively, as though judicial impeachment requires the same \u201cHigh Crimes and Misdemeanors\u201d standard, but there\u2019s at least a colorable argument that this isn\u2019t actually the case. The language in Article II is pretty clear: moving to impeach the President, Vice President, or any civil officers is necessarily connected to conviction (in the Senate\u2026 which isn\u2019t actually a criminal court) for a high crime or misdemeanor. But the term of judges in Article III is different. Article III impeachment is anchored by the much more vague \u201cgood behavior\u201d standard. While most assume judicial impeachment tracks the Article II language, there\u2019s scholarship supporting the idea<\/a> that \u201cgood behavior\u201d creates another, lesser, and non-criminal justification for removal.<\/p>\n

Under this interpretation a judge that falls in to a coma for an extended period of time can be impeached for \u2014 you guessed it \u2014 being in a coma for an extended period of time. Whatever \u201cgood behavior\u201d entails, it surely includes being capable of and actually doing the job assigned to you. If this becomes the basis for removing the judge from office and they wake up from the coma able to do the job, they can be nominated by the President and confirmed by the U.S. Senate a second time. Not sure how this would impact their pensions or benefits, but its an otherwise easy solution with no constitutional compulsion to declare them a criminal.<\/p>\n

Now that that\u2019s all nice and dealt with, can the judges ask questions about what would happen if a judge was accused of being physically unfit because they had a heart attack but then went to a doctor to prove that that never happened<\/a> and then when the accusations were proved demonstrably false no one got in trouble for effectively lying under oath or if a judge was accused of yelling at a clerk when they were reasonably frustrated about their computer being seized from her office or if a judge had their cases stripped from them because they refused to get an examination but then when they got the examination the panel decides those weren\u2019t good enough\u2026 you can go on and on<\/a>. You still get to scratch that \u201cif\u201d itch, but these questions actually correspond to\u2026 you know\u2026 actual issues in dispute. Like Article III requires.<\/p>\n

DC Circ. Fears Newman Atty Would Impeach Disabled Judges<\/a> [Law360]<\/p>\n

Earlier:<\/strong> A Lifetime-Appointed Judge Was Accused Of Not Being Able To Do Her Job. She Brought Receipts.<\/a><\/p>\n

Pauline Newman\u2019s Dissents Get More Attention Than Her Coworkers Making Up Medical Conditions About Her<\/a><\/p>\n

Pauline Newman Speaks: ATL Interviews The Judge Who\u2019s Fighting To Do Her Job<\/a><\/p>\n

Pauline Newman\u2019s Doctor Has Some Choice Words For The Judicial Panel That Ruled Against Her<\/a><\/p>\n

Huge Development In Pauline Newman\u2019s Case: The Test Results Are In!<\/a><\/p>\n

\n
\"\"
<\/figcaption><\/figure>\n

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord\u2122 in the Facebook group\u00a0Law School Memes for Edgy T14s<\/a>. \u00a0He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who is learning to swim,\u00a0a published author on critical race theory, philosophy, and humor<\/a>, and has a love for cycling that occasionally annoys his peers. You can reach him by email at\u00a0cwilliams@abovethelaw.com<\/a>\u00a0and by tweet at\u00a0@WritesForRent<\/a>.<\/strong><\/p>\n

The post D.C. Circuit Judge Panel Uses Pauline Newman Oral Argument To Flesh Out Advisory Opinion On Comatose Judges<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\"\"
(Photo by Bill O\u2019Leary\/The Washington Post via Getty Images)<\/figcaption><\/figure>\n

Can Pauline Newman get a damned break? Yesterday, her lawyer argued the claim that used to be taken as a given: Article III judges are pretty damned hard to get rid of without their consent, bad behavior or a death certificate<\/em>. Put differently, people have been referring to their gigs as lifetime appointments <\/a>for a while now and no one has batted an eye. For reasons that I do not pretend to know, the oral argument instead became fixated on Newman\u2019s lawyer\u2019s musings about judges who, for reasons inapplicable here, are unable to carry out their duties. Strange line of questioning when the case concerns a judge who is able to do her duties so well that she still managed to get a dissent affirmed by the Supreme Court during her stealth impeachment<\/a>.<\/p>\n

Law360<\/a> has coverage:<\/p>\n

\n

\u201cYour theory leaves no room at all,\u201d said U.S. Circuit Judge Patricia A. Millett. \u201cThis is the statute not just about misconduct, but about disability. If you do the impeachment process, you\u2019re out. There\u2019s no temporary impeachment. And you are, in fact, convicted of a crime. You\u2019re going to lose any pension you might have, any benefits. You lose everything.\u201d<\/p>\n

She continued, \u201cThe notion that Congress would say, \u2018Well, if someone has a disability, so they can\u2019t function for six months or a year, we\u2019re going to declare them a criminal and destroy their entire position. And that somehow the Constitution forced that choice seems, to me, an extraordinary proposition.\u201d<\/p>\n<\/blockquote>\n

Fascinating, but fucking irrelevant. We should all be able to recognize a red herring when we see one \u2014 deal with the able-bodied jurist fighting to do their damned job for the last two<\/em> years who is standing in front of you<\/em> rather than conjuring what if scenarios that are complete departures from the facts of the case. And while it was a brilliant rhetorical flourish for Judge Millett to frame most people\u2019s common sense understanding of the conditions to get rid of Article III judges as an \u201cextraordinary proposition,\u201d she\u2019d be better off referring instead to \u201cthe actual text of the Constitution.\u201d Read it for yourself \u2014 the Constitution doesn\u2019t have some magic catch-all for judges to axe their colleagues. It might have felt yucky to hear Newman\u2019s counsel Greg Dolin name death, retirement and impeachment as the only conditions for removal contemplated by the Constitution, but at least it was rooted in the document.<\/p>\n

But hey, let\u2019s not be too harsh. Maybe Judge Millett\u2019s memory went a little hazy on this part of the Constitution. Memory is a tricky thing to keep track of, but I\u2019ve got a lead on someone who knows a few neurologists that can check for recollection, judicial competency and the like: Pauline Newman<\/strong>. Several actually, since her panel\u2019s baseless accusations forced her to go to multiple brain experts, one that directly challenged the panel\u2019s misreading of his report<\/a> and another that proved with pictures that Newman\u2019s brain looks like it belongs to someone decades younger than her<\/a>. <\/p>\n

Judge Millet\u2019s gut check that it is too extreme for the Constitution to require \u201cdeclaring a judge a criminal\u201d before you can force a judge out of their seat might feel<\/em> right to her, but it isn\u2019t the job of a judge to evaluate the Constitution based on vibes and feelings. If that is what the Constitution requires, tough luck. If you feel bad about what the Constitution requires, it is totally fair game to rally support for an amendment to be made. That\u2019s the solution, not a lone panel doing all sorts of process fuckery in the name of \u201cpolicing their own.\u201d<\/p>\n

There\u2019s also a big IF on whether it actually requires Congress to \u201cdeclare them a criminal.\u201d Judge Millett spoke conclusively, as though judicial impeachment requires the same \u201cHigh Crimes and Misdemeanors\u201d standard, but there\u2019s at least a colorable argument that this isn\u2019t actually the case. The language in Article II is pretty clear: moving to impeach the President, Vice President, or any civil officers is necessarily connected to conviction (in the Senate\u2026 which isn\u2019t actually a criminal court) for a high crime or misdemeanor. But the term of judges in Article III is different. Article III impeachment is anchored by the much more vague \u201cgood behavior\u201d standard. While most assume judicial impeachment tracks the Article II language, there\u2019s scholarship supporting the idea<\/a> that \u201cgood behavior\u201d creates another, lesser, and non-criminal justification for removal.<\/p>\n

Under this interpretation a judge that falls in to a coma for an extended period of time can be impeached for \u2014 you guessed it \u2014 being in a coma for an extended period of time. Whatever \u201cgood behavior\u201d entails, it surely includes being capable of and actually doing the job assigned to you. If this becomes the basis for removing the judge from office and they wake up from the coma able to do the job, they can be nominated by the President and confirmed by the U.S. Senate a second time. Not sure how this would impact their pensions or benefits, but its an otherwise easy solution with no constitutional compulsion to declare them a criminal.<\/p>\n

Now that that\u2019s all nice and dealt with, can the judges ask questions about what would happen if a judge was accused of being physically unfit because they had a heart attack but then went to a doctor to prove that that never happened<\/a> and then when the accusations were proved demonstrably false no one got in trouble for effectively lying under oath or if a judge was accused of yelling at a clerk when they were reasonably frustrated about their computer being seized from her office or if a judge had their cases stripped from them because they refused to get an examination but then when they got the examination the panel decides those weren\u2019t good enough\u2026 you can go on and on<\/a>. You still get to scratch that \u201cif\u201d itch, but these questions actually correspond to\u2026 you know\u2026 actual issues in dispute. Like Article III requires.<\/p>\n

DC Circ. Fears Newman Atty Would Impeach Disabled Judges<\/a> [Law360]<\/p>\n

Earlier:<\/strong> A Lifetime-Appointed Judge Was Accused Of Not Being Able To Do Her Job. She Brought Receipts.<\/a><\/p>\n

Pauline Newman\u2019s Dissents Get More Attention Than Her Coworkers Making Up Medical Conditions About Her<\/a><\/p>\n

Pauline Newman Speaks: ATL Interviews The Judge Who\u2019s Fighting To Do Her Job<\/a><\/p>\n

Pauline Newman\u2019s Doctor Has Some Choice Words For The Judicial Panel That Ruled Against Her<\/a><\/p>\n

Huge Development In Pauline Newman\u2019s Case: The Test Results Are In!<\/a><\/p>\n

\n
\"\"
<\/figcaption><\/figure>\n

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord\u2122 in the Facebook group\u00a0Law School Memes for Edgy T14s<\/a>. \u00a0He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who is learning to swim,\u00a0a published author on critical race theory, philosophy, and humor<\/a>, and has a love for cycling that occasionally annoys his peers. You can reach him by email at\u00a0[email\u00a0protected]<\/a>\u00a0and by tweet at\u00a0@WritesForRent<\/a>.<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

(Photo by Bill O\u2019Leary\/The Washington Post via Getty Images) Can Pauline Newman get a damned break? Yesterday, her lawyer argued the claim that used to be taken as a given: Article III judges are pretty damned hard to get rid of without their consent, bad behavior or a death certificate. Put differently, people have been […]<\/p>\n","protected":false},"author":3,"featured_media":116544,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-116554","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2025\/04\/Williams-620x620-nSzaqa.jpeg?fit=620%2C620&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/116554","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=116554"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/116554\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/116544"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=116554"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=116554"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=116554"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}