U.S. Circuit Judge Pauline Newman (Screengrab via YouTube).
Pauline Newman, the oldest judge on the federal bench, has accused the Federal Circuit’s Judicial Council — which is facing off with her in the appeals court over the unsealing of documents related to a suspension she was given — of purposely “withholding” her paperwork to try and “control a media narrative.”
Newman, 97, was shelved by the Federal Circuit last year after she refused to undergo independent neurological testing and failed to provide medical records during a probe into her mental health. Earlier this month, she requested that documents related to the suspension and her mental capability, which had been sealed under a Dec. 4 gag order, be released to the public — saying it would only violate her own privacy, which she doesn’t care about, on account of the documents having no mention of other witnesses or complainants.
In a new motion filed on Dec. 26, Newman’s lawyers said it “appears” the Judicial Council’s “true concern is merely controlling the media narrative” through its refusal to unseal the documents in question. They said Newman “seeks nothing more than having this case be processed like any other matter — publicly.”
“Instead of attempting to justify sealing the information based on the text of the statute, Appellees provide pages of word salad,” the motion says. “The primary reasons they give for keeping the Supplemental Appendix documents under seal are: ‘ensuring the fairness and integrity of the investigative process,’ and avoiding ‘skewed public disclosures.””
Newman’s legal team claims these reasons “lack any factual basis and smack of pure pretext” and are ultimately an attempt to keep the legal scales tipped in the Judicial Council’s favor.
“Despite their persistent repetition of words such as ‘fairness’ and ‘integrity,’ Appellees never say why it would cause the slightest harm to disclose filings as parties make them (as usually happens in litigation), rather than in selective batches when Appellees decide disclosure or the timing of such disclosure works to their advantage,” the motion says.
The Federal Circuit has told Newman’s lawyers that it will release the four requested documents in “a matter of weeks.” But her team doesn’t trust that it can meet the deadline, nor do they understand the delay.
“They do not explain why these additional weeks are needed, what needs to be accomplished during these weeks, nor how this delay will improve ‘the fairness and integrity of the investigative process,’” their motion says. “The only thing that Appellees state is that ‘in a matter of weeks’ there will be a ‘coherent batch’ (as defined solely by Chief Judge Moore) to be released.”
Newman’s lawyers accused the Federal Circuit of “withholding documents” and releasing them “at the pleasure of the chief judge” Kimberly Moore, whom Newman sued in the wake of her suspension, along with all the other judges on the Judicial Conduct and Disability committee.
Newman, who was appointed in 1984 by President Ronald Reagan, was represented in the lawsuit by the New Civil Liberties Alliance (NCLA), a public-interest law firm linked to conservative backers that focuses on the so-called “administrative state.” The firm is also representing her in her appeal; it could not be reached for comment Saturday.
After filing her suit, U.S. District Judge Christopher R. Cooper — a Barack Obama appointee — threw most of it out in February before eventually dismissing the entire case on the pleadings in July. Newman’s legal team appealed his ruling to the U.S. Court of Appeals for the District of Columbia Circuit, arguing that though she was “advanced in age, Judge Newman retains her sharp intellect.”
Furthermore, both lay and expert witnesses have described Newman as an “unusually cognitively intact … woman” whose cognitive and physical abilities make her appear “20 or more years younger than her stated age,” according to her lawyers.
In their latest filing, Newman’s team claims the Special Committee released its “Report and Recommendation” on her mental health “without awaiting Judge Newman’s response to that document.” They believe this was done for “more favorable press coverage,” per the motion, citing past instances where documents were released “on request” by the Federal Circuit.
“Appellees routinely withheld the release of Judge Newman’s responses until the Judicial Council entered its final orders,” the Dec. 26 motion says. “This self-serving practice betrays Appellees’ true aim — more favorable press coverage.”
Newman’s team added, “Appellees’ incomplete and misleading presentation of their own practices to this Court is yet another reason why the Court should not defer to Appellees’ unreasoned decision to seal.”
Attempts by Law&Crime to reach the Federal Circuit for comment on Saturday were unsuccessful.
Elura Nanos contributed to this report.
