CORRECTION: Francis Shen, then an associate professor at the University of Minnesota Law School, conducted research on the age of federal judges. Incorrect information appeared in an earlier version of this story.
A growing dispute over efforts to force the retirement of a 95-year-old federal judge is giving the public a rare glimpse into how the judicial system grapples with issues of age on the bench.
Questions about age are looming large over Washington lately, with doubts about whether an octogenarian president is fit for reelection and if the nation’s oldest sitting senator should finish out her term.
The judicial branch is not without its own issues on the matter, as colleagues of Pauline Newman, a federal appeals court judge, attempt to push her out over concerns about her mental state.
Anonymous court employees have alleged that Newman is “simply losing it mentally” with some describing her as “paranoid,” according to court filings.
A formal investigation is being run by three of her fellow judges after Newman rebuffed pressure to retire earlier this year, with new efforts to reduce her role at the court and demands she submit to a cognitive test.
“Based on its investigation to date, the Committee has determined that there is a reasonable basis to conclude that Judge Newman might suffer a disability that interferes with her ability to perform the responsibilities of her office,” the judges wrote in an unsigned order earlier this month.
The fight has since only turned more bitter. Newman this month sued her colleagues to block the investigation, insisting she is still fit to serve and that their probe is unconstitutional.
“At all relevant times, Judge Newman has been and is in sound physical and mental health,” Newman’s attorney wrote in the complaint. “She has authored majority and dissenting opinions in the whole range of cases before her Court, has voted on petitions for rehearing en banc, and has joined in the en banc decisions of the Court.”
Newman’s chambers and her attorney did not return requests for comment.
The investigation comes as questions about age are being raised in the two other branches of the federal government.
Sen. Dianne Feinstein (D-Calif.), 89, faces increased concerns over her health after a months-long absence from shingles complications.
The age of President Biden, the oldest president in U.S. history, has been the source of attack from rivals. Biden would be 86 at the end of a second term.
But unlike the two branches comprised of elected officials, federal judges’ tenures are not limited, with one key exception: impeachment by the House and conviction in the Senate. The feat has only occurred eight times in U.S. history, according to the Federal Judicial Center.
Life tenure — designed to provide independence — allows federal judges to otherwise serve for as long as they so please.
In her lawsuit against the three-judge committee, Newman argued their investigation skirts those constitutional protections, also contesting their characterizations of her mental state and work output.
“Defendants’ orders and threats constitute an attempt to remove Plaintiff from office—and already have unlawfully removed her from hearing cases—without impeachment and in violation of the Constitution,” Newman’s attorney wrote in the complaint.
It’s a stark contrast from how her colleagues have portrayed Newman’s conduct. By March, half of her fellow active judges on the bench had expressed their concerns to Newman directly or tried to do so, court documents indicate.
Chief Judge Kimberly Moore then took things into her own hands, opening a formal investigation on March 24 under the federal judiciary’s conduct and disability procedures. Before docketing the order, Moore showed a draft to Newman, who again refused to retire.
The probe remains ongoing, but the three-judge committee has already prevented Newman from taking on new cases at the court, even if she maintains her title and salary.
They have conducted more than 20 interviews with unnamed court employees, who described Newman’s demeanor as “paranoid,” “agitated” and “bizarre,” the documents show. Among other things, the employees alleged Newman needs assistance with basic tasks, claims the court has bugged her phones, and repeatedly seems to have trouble retaining information in conversations.
“Though it is difficult to say this, I believe Judge Newman is simply losing it mentally,” one court employee said, according to the filings.
One of Newman’s chamber employees purportedly invoked their Fifth Amendment right against self-incrimination during their interview. After another was granted the ability to relocate outside of Newman’s chambers while continuing their job, Newman allegedly threatened to have him forcibly removed and arrested.
Appointed in 1984 by former President Reagan, Newman, who will turn 96 next month, became the first person to be appointed directly to the Federal Circuit.
She is the oldest active federal judge, but the judiciary overall has generally trended older. In 2020, the average age of federal judges was 69, older than any time in U.S. history, according to research conducted by Francis Shen, who at the time was an associate professor at University of Minnesota Law School.
As judges age, speculation runs rampant about when they might retire, and which president might replace them.
Those battles are even more intense at the Supreme Court, with periodic calls for a justice to retire at a politically opportune time. Just prior to announcing his presidential campaign, Florida Gov. Ron DeSantis (R) this week openly discussed the vacancies he could fill, if elected.
But for Newman, who sits on the Court of Appeals for the Federal Circuit, which focuses on patent and other specialized disputes, the pressure to step aside has come from inside the court. It’s a notable shift from Newman’s long-respected reputation as the court’s “great dissenter.”
“Judge Newman’s dissents have enriched the patent dialogue at the Federal Circuit,” Daryl Lim, associate dean at Penn State Dickinson Law, wrote in a 2017 paper analyzing Newman’s record.
“A few have succeeded in gaining traction with the Supreme Court, with her colleagues, and with academics,” he continued. “Others are pitched to a key for a future court and a true measure of their influence lies in the hands of history. All have become part of its institutional memory, and they provide an unvarnished roadmap of the issues where she saw room for course correction.”
Newman’s reluctance to give into mounting pressure about her abilities is nothing new. Newman had told Lim that she had faced sexism when nominated, now nearly 40 years ago.
“When I was nominated to be a judge, a number of people spoke out, including some who I thought were my friends, saying that they didn’t think that I could handle the job,” Newman said at the time.
This story was updated at 8:53 a.m.