»< New Civil Liberties Alliance
May 25, 2023

The Honorable the Members of the Special Committee of the
Judicial Council for the Federal Circuit

U.S. Court of Appeals for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

VIA EMAIL

Rez In 1 Complaint No. 23-9015 (Complaint Against Circuit Judge Pauline Newman)

Your Honors:

This letter responds to the special committee’s orders of May 16, 2023, which requested that
Judge Pauline Newman agree 1) to medical evaluations by two physicians of the committee’s choosing,
2) ptovide medical records for the committee’s review (via a physician chosen by the committee), and
3) make herself available for a video-taped interview with the committee. After denying our request
for an extension of time, the committee set the deadline to respond to these requests on May 26, 2023
at 9:00am.’ The May 16 orders also once again denied our reasonable request to transfer this matter
to another circuit’s judicial council, and they again completely ignored our request that the Court cease
unlawfully barring Judge Newman from hearing new cases before this investigation has concluded.

As we have written previously, the process contemplated by the Rules for Judicial Conduct
and Judicial Disability Proceedings (“Conduct Rules”) is a cooperative one, ie. characterized by a//
patties to the process “working or operating sogether.” Webster’s Second New International Dictionary
at 402 (emphasis added). But the process thus far has been anything but cooperative. Instead—and
this cannot be emphasized enough—the committee, and/or the Judicial Council of the Federal Circuit
(‘Judicial Council”) has acted zx/awfully by removing Judge Newman from hearing cases even before
the investigation began in earnest. This ongoing action violates Judge Newman’s constitutional duty
and rights under Article III and the Due Process Clause of the Constitution, her statutory rights under
the Judicial Conduct and Disability Act of 1980, 28 U.S.C. § 351, ef seq., and the Conduct Rules.

' We note that May 26, 2023 falls on the Jewish major festival of Shavuot (“Feast of Weeks”). The committee
was apprised that Judge Newman’s lead counsel is spending this time in Israel with family in order to attend to
family and religious obligations. It is particularly disappointing that the committee refused to take these matters
into account. In order to avoid a conflict with counsel’s religious obligations, we are filing this letter ahead of
the deadline, even though doing so has further limited our time to properly consult with Judge Newman and
provide a fulsome response to the committee.

1225 19" Street NW Suite 450, Washington DC 20036] (202) 869-520 www.NCLAlegal.org


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But removing her from hearing cases also tramples on the rights of every Federal Circuit
litigant with an appeal heard during the time of Judge Newman’s unlawful absence from the pool.
Such litigants have the right to have their cases heard by a fair draw from the full complement of
judges confirmed and appointed to hold judicial office. In all likelihood, some number of disappointed
litigants will see fit to raise this objection, as they will stand on their right to have an equal chance of
having Circuit Judge Newman sit to hear their cases. The Court should reseat Judge Newman
immediately to avert this impending problem that the Court’s actions to date have created for itself.

The committee and/or Judicial Council not only maintained this errant, prejudicial course but
failed to even acknowledge our repeated attempts to have its errors corrected. Their refusal even to
acknowledge the glaring problems counsel has identified would lead any neutral observer to question
the committee’s and/or the Judicial Council’s impartiality in this matter. It is one thing to commit
honest errors. It is quite another to persist in them and deliberately disregard repeated attempts to
have them corrected. It thus appears that the committee is not interested in “working or operating
together” with Judge Newman, but instead insists that Judge Newman merely submit to its unlawful
demands.”

Additionally, the growing list of demands on Judge Newman is premised in large part on
statements that the committee already collected from the employees of the Federal Circuit. These
statements were provided to Chief Judge Moore by, inter ala, individuals whose very livelihood
depends on the Chief Judge (given that the Chief Judge has the power to hire, fire, and reassign
employees of the Court, as amply demonstrated by her actions reassigning the employees from Judge
Newman’s own chambers to other positions). Despite the committee’s professed concern that Judge
Newman might “intimidate” witnesses by the mere fact that she is a United States Circuit Judge, the
same concern does not seem to impress the committee when it comes to interviewing witnesses who
work under Chief Judge Moore’s authority and supervision. This approach further indicates that the
committee is subjecting Judge Newman to double standards and is not taking a cooperative and
disinterested approach to resolving this matter.

The substance of the demands themselves, as we have pointed out before, is also highly
problematic. The committee has demanded that Judge Newman turn over medical records to, and
submit to medical and psychological testing by, physicians whose credentials have not been subject to
any examination and whose level of expertise generally or in matters such as the complaint before the
committee is entirely unknown to Judge Newman or her attorneys. Neither Judge Newman nor her
attorneys know on what basis the committee chose a particular medical consultant and on what basis
that particular consultant recommended the physicians who are slated to review Judge Newman’s
medical records and examine Judge Newman. The expertise of these physicians has not been subject
to voir dire nor to the analysis required by Daubert v. Merrell Dow Pharma., 509 U.S. 579 (1993). Yet, the
committee has rejected, out of hand, the suggestion that the choice of physicians be made jointly by
Judge Newman and members of the committee.*

2 The committee’s denial of an entirely reasonable extension request is further evidence of the committee’s lack
of interest in taking a cooperative approach to this matter.

3 The committee’s citation to In re Complaint of Judicial Misconduct, No. 06-13-90009 (Judicial Council of the Sixth
Circuit Feb. 22, 2016) is entirely misplaced. In that case, when faced with a lawsuit, the Judicial Council for the
Sixth Circuit vacated the request for a psychological evaluation by an expert of the judicial council’s choosing


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Next, the committee’s request that Judge Newman appear for a video-taped interview is in
significant tension with the assurances the committee made in its May 3, 2023 Order that it is
intimately familiar with Judge Newman, her work, her behavior, her personality, and any changes in
these traits. If the committee is indeed already familiar with these facts, it is hard to understand what
additional information it expects to glean from the requested video-taped interview.

Unfortunately, actions taken by this committee against Judge Newman thus far, and the
committee’s conduct towards Judge Newman over the past two months, have forced Judge Newman
to reach a regrettable decision: With the greatest respect for the committee, she cannot in good
conscience meet its requests. To assent to the committee’s demands while it is unlawfully keeping her
from hearing cases would sacrifice the legal principles to which Judge Newman has devoted her entire
life and career. Judge Newman has not sat on the federal bench for over thirty-nine years just to sit
idly by while due process of law gets thrown to the wind in her own case and unilateral actions are
taken in defiance of Congress’s unique role in impeaching judges.

Nevertheless, and despite all of the above objections, Judge Newman does wish to engage in a
truly cooperative process to resolve any doubts or concerns about her physical and mental ability to
continue to hold judicial office. To that end, Judge Newman is entirely willing to undergo necessary
testing, provide necessary records, and meet with a special committee provided that she is immediately
restored to her rights and duties as a judge and further provided that this matter is promptly transferred to a judicial
council of another circuit, which is unmarred by the prior unlawful decisions and which is willing to “work|]
or operat[e] /ogether” with Judge Newman, including on selecting medical providers and setting the
appropriate parameters of any examination. Judge Newman commits to making herself available for
appropriate appointments at the earliest opportunity in these circumstances.*

Regrettable as it may be, should the committee persist in its unlawful actions and demands,
Judge Newman will be forced to seek her remedies in federal district court.’ Even at this late hour, it
is our sincere hope that such a development can yet be avoided. The power to do so, however, rests
entirely with the special committee and the Judicial Council of the Federal Circuit.

Sincerely,

/s/ Gregory Dolin,U.D.

Senior Litigation Counsel
NEW CIVIL LIBERTIES ALLIANCE

and vacated all sanctions associated with a refusal to submit to such an unlawful request. We are confident
that, if the present matter proceeds to adjudication in the District Court, the outcome will be much the same.
4 This commitment is made in the spirit of cooperation, but without waiving any rights that Judge Newman
may have under the Constitution and the laws of the United States.

5 See Newman v. Moore, et al, No. 23-cv-01334 (D.D.C. 2023).

6 Pursuant to Rule 23(b)(7) of the Conduct Rules Judge Newman consents to and requests a public release of
this letter.