New Authority: When to Go?

Published: 29 September 2023

                    old man leaning on a cane looking off in thought

New Authority: When to Go?

Author: Dr. Michael H. Hoeflich

This article is featured in Volume 4, Number 9 of the Legal Ethics and Malpractice Reporter.

One of the most difficult things a person can face as they age is recognizing that one’s physical and mental abilities decline over time. For highly motivated professionals, like lawyers, it is often extremely difficult to know when the time has come to step back from active practice. For judges, it may be even more difficult, since they hold positions of even greater responsibility in our profession and in our society.

There are few things sadder than seeing a judge’s cognitive faculties decline while he or she refuses to recognize what is happening. It may be possible to hide these changes for a while; but, eventually, others will notice. Judges, in particular, are surrounded by clerks, court staff, lawyers, and others.

On September 20, 2023, the Judicial Council of the Federal District issued an order suspending a 96-year-old federal judge, Pauline Newman. Judge Newman had served for decades on the United States Court of Appeals for the Federal Circuit, one of the most important courts in the nation. There is no question that Judge Newman served with distinction throughout those decades. However, in recent years, a number of co-workers and other judges raised questions regarding her continuing mental fitness to serve.

According to the order, every attempt was made to avoid this situation:

From the out-set, the Chief Judge and other members of the Court approached Judge Newman in a respectful manner to attempt to address a difficult situation with concern for a valued colleague hoping for an informal resolution that would have avoided this process. See March 24 Order at 2; Ex. 1 (emails between Chief Judge Moore and Judge New- man). Multiple colleagues attempted to speak to Judge Newman about her fitness. She refused to speak to them at all or quickly terminated an attempt to discuss the issue. The Chief Judge shared a draft complaint with Judge Newman detailing some of the concerns that had been raised and sought to meet with her. Ex. 1. Judge Newman refused multiple requests for a meeting.

Ultimately, the Council determined that they could not delay action any longer:

Unfortunately, earlier this year mounting evidence raised increasing doubts about whether Judge Newman is still fit to perform the duties of her office. When such evidence is brought to the attention of the Chief Judge and the Judicial Council, there is an obligation to investigate the matter under the procedures established by the Judicial Conduct and Disability Act of 1980 (Act)—the self-policing mechanism Congress created to address (among other things) judges who may no longer be fit for judicial office. Failing to act under the circumstances here would breach our obligations under the Act, display disregard for the rights of litigants bringing their cases before this Court, ignore the rights of court staff to be free from increasingly dysfunctional behavior in the workplace, and undermine public confidence in the judiciary. 

The tone of the order clearly betrays the Council’s sadness over the situation.

Judge Newman, a long-serving and distinguished judge, endured a humiliating experience. Her fellow judges and her co-workers have been forced to act in formal proceedings they never wished to initiate. And the judicial system has once again publicly endured a distressing set of events. The underlying facts and their order have all the elements of a Greek tragedy.

Could all of this have been avoided? Clearly, they could have. It may well be that Judge Newman was unable to see the situation clearly, but what of her lawyers? Did they provide her the independent counsel that Rule 2.1 requires? Should we give credence to Judge Newman’s allegations that the proceedings against her were ill-motivated? Or is this simply a tragic instance of a human being’s unwillingness to accept the limitations imposed on all us mortals?

Years ago, when I first became dean at the University of Kansas School of Law, a senior colleague came to me and asked a favor: He asked that, when the time came that he was not performing his duties as he would want to, I would tell him so that he could retire. I promised that I would. When the time came, I did, and he retired. He retired at a high point and received all the praise he deserved for a wonderful career.

In contrast, Judge Newman’s tragic situation serves as a warning to us all. As the Bible says, “there is a time to every season.” Let us all be so fortunate as to know when our season has passed.


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