Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2: Welcome to the Bloomberg Law Show. I'm June Grosso. The
Speaker 2: House impeaches Homeland Security Secretary Alejandro Majorcis on its second try.
Speaker 2: What will the Senate do? And the country's oldest judge
Speaker 2: loses her fight to be reinstated.
Speaker 1: On this vote the Yaser two fourteen and the NASER
Speaker 1: two thirteen, the resolution is adopted.
Speaker 2: House Republicans finally got that one vote margin necessary to
Speaker 2: impeach Homeland Security Secretary Alejandro Majorcis in a redo of
Speaker 2: their failed attempt last week. Majorcis, the first Latino and
Speaker 2: immigrant to head the department, is only the second cabinet
Speaker 2: member in US history and the first in almost one
Speaker 2: hundred and fifty years to be impeached. The impeachment articles
Speaker 2: charged Majorcis with failing to US immigration law. The allegations
Speaker 2: are baseless and I'm focused on the work. There's virtually
Speaker 2: no chance the Senate will have the necessary two thirds
Speaker 2: majority to convict Majorcis and remove him from office. Despite that,
Speaker 2: the House went forward with impeachment, succeeding with the vote
Speaker 2: of Republican Majority Leader Steve Scalice who returned to Washington
Speaker 2: after being away for cancer treatments.
Speaker 3: And if they ignore this, then there will be accountability
Speaker 3: and consequences to that action.
Speaker 1: So it's on the Senate.
Speaker 2: Several leading conservative scholars, along with former Homeland Security secretaries
Speaker 2: from both Republican and Democratic administrations, have dismissed the Majorcis
Speaker 2: impeachment as unwarranted or a waste of time, as has
Speaker 2: House Minority Leader HACKEM Jeffreys.
Speaker 1: This is extraordinary.
Speaker 3: This is the height of cynicism. Once again, they are
Speaker 3: embracing chaos and walking away from common sense.
Speaker 2: Joining me is an expert in impeachment, Frank Bowman, a
Speaker 2: professor of the u University of Missouri Law School, who
Speaker 2: justified before the Homeland Security Committee in January. They voted
Speaker 2: to impeach him on accounts of wilful and systemic refusal
Speaker 2: to comply with the law and reach of public trust
Speaker 2: relating to his handling of immigration and security at the border.
Speaker 2: Even if proved, does that rise to the level of
Speaker 2: high crimes and misdemeanors?
Speaker 3: Well, with respect to the first claim that he actually
Speaker 3: willfully violated the law on a matter that was real
Speaker 3: seriousness I mean, I suppose if it were true, we
Speaker 3: could have a conversation. But it's not true. It's name
Speaker 3: close to true. The best they can say is that
Speaker 3: he used the discretion conferred on him by law to
Speaker 3: interpret and apply a series of immigrasion laws which are
Speaker 3: both contradictory and confusing, and he did that in conformity
Speaker 3: with the directives of the President. There simply is no
Speaker 3: indication at all that he's violating the law. I mean,
Speaker 3: the primary thing that they claim he's violating the law
Speaker 3: on is the claim that the law a choirs that
Speaker 3: people who are in the country illegally must be detained
Speaker 3: and that they cannot be be paroled. Well, it's just
Speaker 3: not true. I mean, the law itself has plenty of
Speaker 3: parole provisions, And in fact, on that particular point, the
Speaker 3: United States Supreme Court has actually held any one of
Speaker 3: the series of lawsuits brought against the Department and Secretary
Speaker 3: of America's by some state for public coustrians general, the
Speaker 3: Supreme Court's actually held that detention is not mandatory. So
Speaker 3: the thing that they are claiming he's violating the law
Speaker 3: on the Supreme Court has basically said, no, that's not true.
Speaker 3: It's really quite remarkable. So we don't even need to
Speaker 3: get to the question of whether or not, in some
Speaker 3: hypothetical case, a sufficiently serious and plain violation of law
Speaker 3: would in itself be impeachable. The answer, I suppose, in theory,
Speaker 3: in the right case might be yes. But he hasn't
Speaker 3: violated the law. What they've got is a series of
Speaker 3: lawsuits against him in which, you know, in the lower
Speaker 3: courts they've won some and they've lost them, and the
Speaker 3: only two that made it up to the Supreme Court,
Speaker 3: the Republicans have lost. They don't have a final judgment
Speaker 3: against him suggesting that he's violated the law. It's all
Speaker 3: it's all made up.
Speaker 2: What about this breach of public trust? That's pretty broad?
Speaker 3: Well, that is in a piece I wrote on my blog,
Speaker 3: I refer to that count as a ragpicker's bizarre because
Speaker 3: it's just got a bunch of stuff in it. For example,
Speaker 3: they claim he made false statements to the committee. No
Speaker 3: he didn't. The claimed false statements that they are alleging
Speaker 3: he made are cases in which they're basically disagreeing with
Speaker 3: his use of adjectives and adverbs. In other words, they
Speaker 3: claim that he falsely claimed that apprehended aliens of no
Speaker 3: legal basis from in the United States were being quickly removed.
Speaker 3: The only thing to disagree with that is the word quickly.
Speaker 3: They're impeaching him because they don't like his use of
Speaker 3: the adjective quickly to modify removed. In other cases, he
Speaker 3: described the border as being secure or no less secure
Speaker 3: than it was previously. They claim that's a false statement.
Speaker 3: At most, it's an opinion about the efficiency of his
Speaker 3: administration and his agency. And we know, first of all,
Speaker 3: from the very time of the framing that matters of
Speaker 3: opinion are not matters appropriate for impeachment. But in any case,
Speaker 3: if it were an impeachable offense for someone to go
Speaker 3: into Congress and provide a generous and even optimistic assessment
Speaker 3: of the performance of our an agency, or for example,
Speaker 3: a congressman to provide a generous spin on some matter
Speaker 3: of public policy, everybody would be impeachable. There is not
Speaker 3: a single instance of an actual false statement if they
Speaker 3: allege in this article. So that's one thing they claim.
Speaker 3: In that second article, they claim that there was an
Speaker 3: obstruction of congressional oversight. Well for Republicans who defended Donald
Speaker 3: Trump to claim that anybody else to be impeachable for
Speaker 3: obstruction of congressional oversight would make a dog to laugh.
Speaker 3: And it's simply not true that my ARC has substructed
Speaker 3: congressional oversight. He has testified somebody twenty seven times before
Speaker 3: various congressional committees. Multiple times before this committee, he've made
Speaker 3: like ninety witnesses available to Congress. And the question about
Speaker 3: the operations, the department provided tens of thousands of pages
Speaker 3: of documents. And when I learned when the committee wanted
Speaker 3: to examine him him testify one more time, he responded
Speaker 3: by saying, well, a particular day you've asked me to come,
Speaker 3: I'm actually meeting with Mexican officials to talk about border issues.
Speaker 3: Can we reschedule it? And they refused and went ahead.
Speaker 3: An impeached in p obstruction. I mean, it's a joke.
Speaker 3: There is absolutely nothing in either of these articles. And
Speaker 3: I think that fact that that is so is indicated
Speaker 3: by the fact that they could not find a single
Speaker 3: legal expert of any kind, not a legal historian, not
Speaker 3: a constitutional scholar, not a judge, not a lawyer, not
Speaker 3: a single person could they find to come down to
Speaker 3: Congress and say, yes, does a constitutional matter what you're
Speaker 3: alleging is impeachable because not.
Speaker 2: There Also, just hours before the vote, the US Border
Speaker 2: Patrol released new data showing that the number of migrants
Speaker 2: illegally crossing the southern border with Mexico plummeted by fifty
Speaker 2: percent in January compared with December. Who knows why, But
Speaker 2: does that mitigate against them impeaching him?
Speaker 3: Well, performance numbers shouldn't be a matter of impeachability, right,
Speaker 3: I mean, that's the key here. Impeachment is a constitutional
Speaker 3: mechanism that is reserved for the most serious kinds of offenses.
Speaker 3: That's why if you can only bepeached for treason, bibrary
Speaker 3: or other high crimes and misdemeanors. Is a grave constitutional
Speaker 3: tool for the most serious of matters. It is not
Speaker 3: something that you trot out simply because you disagree with
Speaker 3: administration policy or you find the performance of a particular
Speaker 3: cabinet officer to be below your standards. I mean, does
Speaker 3: there reason that myorcis is only the second CABT officer
Speaker 3: ever to be impeached. It's because for two hundred and
Speaker 3: thirty five years, everybody understood that's the case, that you
Speaker 3: don't impeach people for policy differences. If you do, why
Speaker 3: you'd be impeaching people left right sideways. The only Capint
Speaker 3: officer who's ever been impeached was a guy who flagrantly
Speaker 3: committed bribery. The Republicans are stepping into dangerous new ground
Speaker 3: here where they're simply saying, well, anytime we don't like
Speaker 3: something the administration is doing, we can simply impeach the
Speaker 3: person who happens to be the head of the department
Speaker 3: who's doing most of it. So I don't think that
Speaker 3: it matters at all what the particular numbers are for
Speaker 3: impeachment purposes. However, that does take us into the larger
Speaker 3: picture here, which is, even if your theory is I
Speaker 3: can impeach an officer because I'm really really upset about
Speaker 3: the conduct of a particular policy area by the administration,
Speaker 3: the real thing you should be doing, actually is you
Speaker 3: should be passing legislation to address the problem that you're
Speaker 3: so upset about. But of course, as we know, within
Speaker 3: the last ten days or so, a bipartisan group of
Speaker 3: senators negotiated a real piece of legislation would have made
Speaker 3: very significant changes to immigration enforcement in this country. And
Speaker 3: then the very same people who want to impeachment arca
Speaker 3: is basically squashed it at the behest of the Donald
Speaker 3: Trump because they don't want to solve the problem, they
Speaker 3: want to run on it. And that's all this is.
Speaker 2: The House has appointed eleven Republicans to serve as impeachment managers,
Speaker 2: so then this goes over to the Senate. Does the
Speaker 2: Senate have to hold a trial?
Speaker 3: An interesting question constitutionally, It's one we talked about in
Speaker 3: the first Trump case. I don't know the answer. Nobody
Speaker 3: really knows the answer, but certainly it appears that the
Speaker 3: Senate has concluded that the majority leader has concluded that
Speaker 3: something has to happen, that the Senate has to address it,
Speaker 3: because I gather that they're going to commence something on
Speaker 3: the twenty sixth.
Speaker 2: Well, he said that the appointed House Republican impeachment managers
Speaker 2: will present the articles to the Senate when Senators return
Speaker 2: to Washington at the end of the month, and then
Speaker 2: the Senate Press in pro tam Patty Murray will preside
Speaker 2: over a trial. But I'm wondering if there is any
Speaker 2: way around that.
Speaker 3: There is a mechanism by which one could avoid holding
Speaker 3: this full trial. Commonly for the last several decades, at
Speaker 3: least for lesser officers people other than presidents. They've created
Speaker 3: a trial committee that will simply hold hearings, present a
Speaker 3: report to the full Senate, and the full Senate votes.
Speaker 3: I don't even think that will happen here. My best
Speaker 3: guess is that some sort of trial will be convened,
Speaker 3: and that the presiding officer will probably entertain a motion
Speaker 3: to dismiss the case upfront without the presentation of evidence,
Speaker 3: and that will be taken, and my guess the whole
Speaker 3: thing will be dismissed without any evidence being presented. I
Speaker 3: don't know that, no inside information on that point, but
Speaker 3: something like that email, remember, actually was attempted in certainly
Speaker 3: I think the second Trump case, where there's an emotion
Speaker 3: to dismiss based on the alleged lack of jurisdiction, and
Speaker 3: that motion failed and they went forward with something the
Speaker 3: nature of trial. I think in this case the emotion
Speaker 3: will be a very probably and that will be the
Speaker 3: end of it. Now.
Speaker 2: Majorcis is not the only Biden administration official that House
Speaker 2: Republicans want to impeach. They're of course looking into impeaching
Speaker 2: President Biden. They file legislation to impeach a list including
Speaker 2: Vice President Kamala Harris, Attorney General Merrick Garland, FBI Director
Speaker 2: Christopher Ray, and Defense Secretary Lloyd Austin. What is wrong
Speaker 2: with this picture?
Speaker 3: I mean one has to avoid overreacting a little bit
Speaker 3: in the sense that individual outlying members of the House
Speaker 3: that both parties have over time sometimes introduced resolutions to
Speaker 3: try to impeach this person or that person because they
Speaker 3: were ticked off. What's different here, obviously, is that what
Speaker 3: we have here is not simply the actions of one
Speaker 3: or two eccentrics. What we have here is a concerted
Speaker 3: effort by House Republicans to impeach people from the President
Speaker 3: on down without any grounds. And that is very very bad.
Speaker 3: I mean, first, it terribly devalues the institute of impeachment itself,
Speaker 3: which is supposed to be reserved for the most serious
Speaker 3: instances of very grave official misconduct. If you are taking seriously,
Speaker 3: completely non serious allegations on a regular basis, then when
Speaker 3: something really serious comes along, it's too easy to dismiss it.
Speaker 3: So that's problem number one. And the other problem, of course,
Speaker 3: is that they're very likely to lead us down a
Speaker 3: path of sort of endless taliatory impeachment or impeachment investigations.
Speaker 3: And at this point the phenomenon is limited to Republican
Speaker 3: but you know, Democrats are not saints, and should control
Speaker 3: of the House shift and Democrats be based with a
Speaker 3: Republican president, I think there's leasting to be a temptation
Speaker 3: for them doesn't start doing the same sort of performantive foolishness,
Speaker 3: and that not only devalues impeachment, but it devalues the
Speaker 3: seriousness of the entire institution. It makes the House look silly,
Speaker 3: It wastes their time. It means that people looking on
Speaker 3: from afar are likely think that anytime anybody raises impeachment,
Speaker 3: this isn't serious. This is just people being fools. And
Speaker 3: that's terrible. It's terribly dangerous. It removes one of the
Speaker 3: important constitutional protections against really's serious misconduct, and it just
Speaker 3: wastes the country time, it wastes the House's time. Republicans
Speaker 3: are doing something remarkably dangerous and remarkably wish well.
Speaker 2: We'll see what happens in this case. On February twenty sixth,
Speaker 2: Thanks so much, Frank. That's Professor Frank Bowman of the
Speaker 2: University of Missouri Law School. Coming up next, a ninety
Speaker 2: six year old judge loses her fight to be reinstated.
Speaker 2: This is Bloomberg. Ninety six year old judge Pauline Newman,
Speaker 2: known for her descents and expertise in patent law, has
Speaker 2: set on the Federal Circuit Court of Appeals for almost
Speaker 2: forty years, but for the last year she's been fighting
Speaker 2: her suspension from the bench for refusing to undergo medical
Speaker 2: testing as part of an investigation into her fitness.
Speaker 1: I think nation needs my voice. I think that if
Speaker 1: the judges on this court are willing and more than
Speaker 1: willing to push me out in order to get me
Speaker 1: out of the way so that no one says that
Speaker 1: they've made a mistake, that I need to be here
Speaker 1: to countermand that.
Speaker 2: Her prospects for reinstatement appeared dim after most of her
Speaker 2: lawsuit challenging her suspension was dismissed on Monday by a
Speaker 2: DC federal judge, and the US Judicial Conference's Committee on
Speaker 2: Conduct and Disability upheld the suspension last week. Joining me
Speaker 2: is Arthur Hellman, a professor at the University of Pittsburgh
Speaker 2: Law School who helped draft the laws courts use to
Speaker 2: Police Judges Arthur. This case has gone off in so
Speaker 2: many different directions, so perhaps we should start at the beginning.
Speaker 2: Her fellow jurists on the US Court of Appeals for
Speaker 2: the Federal Circuit voted unanimously in September to bar her
Speaker 2: from getting new case assignments for at least a year,
Speaker 2: or until she sat for court ordered medical examinations. How
Speaker 2: did we get to that point.
Speaker 4: Well, it's been a rather twisted path, and as you
Speaker 4: point out, it started back actually, I think in February
Speaker 4: or March of last year, so we're now one year
Speaker 4: into this very lengthy proceeding. But the Chief Judge of
Speaker 4: the Circuit, Chief Judge Kimberly Moore, received reports from primarily
Speaker 4: staff employees of the Federal Circuit that Judge Newman seemed
Speaker 4: to be having cognitive or behavioral problems, and that led
Speaker 4: Chief Judge Moore initially to deny Judge Newman the opportunity
Speaker 4: to sit on the monthly panels for April and May
Speaker 4: of last year. And Judge Moore also identified a complaint
Speaker 4: against Judge Newman under the Judicial Conduct and Disability Act
Speaker 4: of nineteen eighty that started an investigation which was carried
Speaker 4: out by a special committee of the Federal Circuit Judges,
Speaker 4: three judges, including Judge Moore, that was to investigate the
Speaker 4: complaints primarily of disability, but that included a request or
Speaker 4: really an order, to Judge Newman to undergo some neurological
Speaker 4: testing submit some medical reports. Judge Newman refused to do
Speaker 4: any of those things, and that led Chief Judge Moore
Speaker 4: to add a complaint of judicial misconduct against Judge Newman.
Speaker 4: And that is what we're dealing with now. The underlying
Speaker 4: concern is about disability, but for almost the last year,
Speaker 4: the entire focus has been on this conduct, specifically failure
Speaker 4: to cooperate with the special committee.
Speaker 2: And it's very unusual for the public to have a
Speaker 2: window into these kinds of proceedings, and it seemed to
Speaker 2: get very personal, very fast.
Speaker 4: Well, it's not only unusual, it's unprecedent that nothing like
Speaker 4: this has ever happened. I mean, ordinarily, all of this
Speaker 4: would be going on in private, and in almost all
Speaker 4: other cases it would have been resolved privately, and all
Speaker 4: we would have known was the ultimate resolution. And yes,
Speaker 4: you know, I'm speaking as an outsider. I have no
Speaker 4: personal knowledge any of the individuals involved. But my sense,
Speaker 4: you know, from talking to people and from reading some
Speaker 4: of the blog commentaries, is that it does appear to
Speaker 4: be somewhat personal, which makes it especially regrettable. Chief Judge
Speaker 4: Moor did not take the opportunity to request Chief Justice
Speaker 4: Roberts to transfer this proceeding to another circuit. He could
Speaker 4: have done that under the rules, and I think if
Speaker 4: she had done that, we would be looking at a
Speaker 4: very different sort of proceeding at this point, which perhaps
Speaker 4: a happier outcome.
Speaker 2: A seven judge panel of the Judicial Conference of the
Speaker 2: United States Committee on Judicial Conduct and Disability, which I
Speaker 2: hadn't heard of until this case, said in a written
Speaker 2: decision that Newman didn't have good cause to refuse to
Speaker 2: cooperate with the Appeals Court investigation. Tell us about the decision.
Speaker 4: Yes, as you've mentioned, this is a committee, a standing
Speaker 4: committee of the Judicial Conference of the United States, and
Speaker 4: that's a little known body, but it's a very important
Speaker 4: one because it's the administrative policymaking body of the national
Speaker 4: federal Judiciary. And the statute that established the Judicial Conduct
Speaker 4: and Disability Proceeding authorizes the Judicial Conference to delegate its
Speaker 4: responsibilities under the Act to a standing Committee, which it
Speaker 4: has done. So, this standing Committee reviewed the order of
Speaker 4: these Circuit councils suspending Judge Newman, and went through each
Speaker 4: of Judge Newman's objections to the preceding, rejected each of
Speaker 4: them and affirmed the order. I think it's pretty important
Speaker 4: to emphasize that throughout the Judicial Conference Committee adopted a
Speaker 4: standard of deferential reviews that basically, the Committee decided that
Speaker 4: it would reverse or reject the Council's conclusions only if
Speaker 4: the Council abused its discretion. And that's a hard standard
Speaker 4: to me, and in my view, one that was not
Speaker 4: entirely appropriate here where you have a body of judges
Speaker 4: suspending an article free judge from hearing cases for a
Speaker 4: substantial period of time.
Speaker 2: And this is unusual, right. It was just the third
Speaker 2: written decision issued by the Panel in more than three years.
Speaker 4: Yes, the Panel does not issue very many decisions. That assumes,
Speaker 4: of course, that all of their decisions are public. It
Speaker 4: may be that they do some work behind the scenes.
Speaker 4: For example, there's a reference in the opinion just issued
Speaker 4: to the fact that Judge Newman's council asked for interlocutory
Speaker 4: or immediate review of some of the Judicial Council orders
Speaker 4: the Conduct Committee. The Judicial Conference Committee rejected that request,
Speaker 4: but there is no published order separately reflecting that. So
Speaker 4: there may be some other things that the Committee has
Speaker 4: done behind the scenes. But you're right, the formal orders
Speaker 4: are very rare. It's unusual to have more than one
Speaker 4: or two a.
Speaker 2: Year as far as this, because there are a lot
Speaker 2: of moving pieces here. As far as the Judicial Conference's decision,
Speaker 2: is there an appeal from that possible?
Speaker 4: That's a very interesting question because under the rules that
Speaker 4: were adopted by the Judicial Conference to govern these proceedings,
Speaker 4: the full Judicial Conference does have the power to review
Speaker 4: a decision by the Standing Committee. There is no right
Speaker 4: to review by Judge Newman or anyone else, but the
Speaker 4: Full Conference does have the authority to do so, and
Speaker 4: I think there would be a appropriate to do so here.
Speaker 4: There was actually a very interesting and little notice proceeding
Speaker 4: just last year in another case proceeding under the Act,
Speaker 4: where the Judicial Council had affirmed a decision by a
Speaker 4: Chief Judge which dismissed a complaint. This was a complaint
Speaker 4: involving an assertion that two judges had hired a law
Speaker 4: clerk who engaged in some allegedly racist behavior, and the
Speaker 4: Council was the case that had been transferred to another circuit.
Speaker 4: The Council dismissed that complaint. The complainant appealed to the
Speaker 4: Judicial Conference Standing Committee. The Standing Committee directed the Judicial
Speaker 4: Council to reopen the investigation, and the two judges then
Speaker 4: argued that that order, the order requiring reopening, is contrary
Speaker 4: to the statute and the Judicial Council the second circuit.
Speaker 4: The Judicial Council asked the Full Judicial Conference to give
Speaker 4: an opinion on that question, and to my great surprise,
Speaker 4: the Judicial Conference said that the rule authorizing that reopening,
Speaker 4: which has been promulgated by his Judicial Conference, was contrary
Speaker 4: to statue, which indeed it is. And I will just
Speaker 4: say that I made that argument many years ago when
Speaker 4: the rule was first adopted. So we have a very
Speaker 4: recent episode in which the Full Judicial Conference has in
Speaker 4: effect overruled the Standing Committee. So that could happen here also,
Speaker 4: I don't expect it, but it could happen, and I
Speaker 4: have the power to do that.
Speaker 2: Let me just get one thing straight. If she agrees
Speaker 2: to go for medical examinations, can she lift her suspension.
Speaker 4: It's possible, but it is all in the hands of
Speaker 4: the Judicial Counsel. I think the Judicial Council orders are
Speaker 4: very clear that they will not allow her to hear
Speaker 4: cases again unless she complies with the Special Committee's various orders.
Speaker 4: But as I read their orders, they are not guaranteeing
Speaker 4: that if she does, they will let her rehear cases.
Speaker 4: And I think she is now what ninety six years old,
Speaker 4: so time is against her ever hearing cases again.
Speaker 2: I have to say, so this is proceeding on one track.
Speaker 2: Then she sued the Judicial Council, which includes the Chief
Speaker 2: Judge Kimberly Moore and the Federal Circuit's other active judges
Speaker 2: in the DC Federal District Court, and on Monday, the
Speaker 2: District Court judge dismissed most of her suit.
Speaker 4: Yes, allowed a little bit of it to go forward
Speaker 4: a low as I read the order, it's allowing it
Speaker 4: to go forward, not really leaving much of a chance
Speaker 4: for Judge Newman. It's allowing it to go forward on
Speaker 4: what is called facial challenges to the Act. In other words,
Speaker 4: arguments that the Act itself is unconstitutional on its face
Speaker 4: in authorizing some of the things it did. Well. A
Speaker 4: facial challenge to an act of Congress is a very
Speaker 4: very hard challenge to succeed in, which is why I
Speaker 4: say that I don't think it leaves much room for
Speaker 4: Judge Newman to prevail. The Government will now make a
Speaker 4: motion to get rid of the rest of the case,
Speaker 4: and I suspect that the District Court will do that.
Speaker 4: It's a very thorough and careful opinion, but I don't
Speaker 4: think it holds out much hope for Judge Newman.
Speaker 2: Coming up next, I'll continue this conversation with Professor Arthur
Speaker 2: Hellman and we'll talk about whether the federal judiciary is
Speaker 2: facing the problem of aging judges. A Law Review article
Speaker 2: in twenty twenty found that seventy five percent to federal
Speaker 2: judges die while still serving on the bench. Remember you
Speaker 2: can always get the latest legal news by listening to
Speaker 2: our Bloomberg Law podcast. You can find them on Apple Podcasts,
Speaker 2: Spotify and at Bloomberg dot com Slash podcast Slash Law.
Speaker 2: I'm June Grosso, and you're listening to Bloomberg. Ninety six
Speaker 2: year old Judge Pauline Newman has sat on the Federal
Speaker 2: Circuit Court of Appeals for almost forty years and refuse
Speaker 2: to retire or even take senior status.
Speaker 1: I thought, what what will I do now. I don't
Speaker 1: want to be a litigator. I don't want to be
Speaker 1: a mediator. I'd rather decide rather than mediate, as many
Speaker 1: judges do. If I had her family by that time,
Speaker 1: I would have had those great grandchildren, I suppose. But
Speaker 1: I didn't take that path. I don't know why, but
Speaker 1: I didn't.
Speaker 2: But she was suspended from the bench for refusing to
Speaker 2: undergo medical testing as part of an investigation into her
Speaker 2: fit witness, and she's been fighting that suspension for the
Speaker 2: last year. Her prospects for reinstatement appeared dim after most
Speaker 2: of her lawsuit challenging her suspension was dismissed on Monday
Speaker 2: by a DC District Court judge. I've been talking to
Speaker 2: ethics expert Arthur Hellman, a professor at the University of
Speaker 2: Pittsburgh Law School. Federal Judge Christopher Cooper said in the
Speaker 2: decision that earlier cases have quote consistently affirmed the judiciary's
Speaker 2: authority to police itself. Arthur explained how that fits in
Speaker 2: with Judge Newman's claims in the lawsuit.
Speaker 4: That's underlying the basic argument here that the Judge Newman
Speaker 4: is making high level is that under the Constitution an
Speaker 4: Article three, judge Judge Newman can be removed from office
Speaker 4: only by the process of impeachment in the House and
Speaker 4: then a trial and the Senate. And this suspension for
Speaker 4: one year, which could be longer, is the functional equivalent
Speaker 4: of removing her from office, and as such is not
Speaker 4: authorized by the Constitution. But the Council argues, and the
Speaker 4: DC Circuit has actually held that some suspensions are permitted
Speaker 4: by the Constitution under the statute that Congress passed. So
Speaker 4: that's why I say it's an uphill battleist and precedent
Speaker 4: in this very circuit against the constitutional argument that Judge
Speaker 4: Newman is making.
Speaker 2: Apparently, this proceeding has led to calls to change the
Speaker 2: statutory framework for evaluating judges for potential disability and misconduct.
Speaker 2: Is there any agreement on what changes should be made,
Speaker 2: and do you think changes should be made?
Speaker 4: I do think this episode has revealed some flaws in
Speaker 4: the system that nobody has seen before. I mean, some
Speaker 4: of them would be pretty easy to correct. You wouldn't
Speaker 4: even need the statute, good example, to put into the
Speaker 4: rules that if you have a complaint against a circuit
Speaker 4: judge and the Chief judge is not going to dismiss it.
Speaker 4: That ought to go to the Chief Justice to decide
Speaker 4: whether to transfer that. That would be a simple change
Speaker 4: in the rule under this statute. Maybe some of this
Speaker 4: could be done by rule. Also, I do think that
Speaker 4: when you have an intrusive order like this one requiring
Speaker 4: a judge to undergo a neuropsychological examination to provide intimate
Speaker 4: medical details, there ought to be a little bit more process.
Speaker 4: For example, that the committee should hold some sort of
Speaker 4: hearing at which the witnesses could be cross examined by
Speaker 4: the judge. And assuming that the Committee goes ahead with
Speaker 4: the request or order, I would like to see immediate
Speaker 4: review available of that. I would also like to see
Speaker 4: situations like this where you have a proceeding that can
Speaker 4: result in an Article three judge being told she can't
Speaker 4: hear cases anymore for a substantial period of time. I
Speaker 4: would like to see the review by the National Committee
Speaker 4: as an independent review, not simply abusive discretion as was
Speaker 4: done here. I don't think those are major changes. Still
Speaker 4: preserves the same framework, but I think you could build
Speaker 4: in some protections that would not greatly extend the process,
Speaker 4: but would assure everybody that a federal judge who has
Speaker 4: been appointed by the President and confirmed by the Senate
Speaker 4: is not being effectively ousted from office by a process
Speaker 4: that people can legitimately question.
Speaker 2: Now, this has also focused the debate on the aging
Speaker 2: judiciary we have and judges who have lifetime appointments. And
Speaker 2: Francis Shen, who's on the faculty at Harvard Medical Schools
Speaker 2: Center for Law, wrote a Law review article in twenty
Speaker 2: twenty that found that seventy five percent of judges die
Speaker 2: while still serving, and the average age of judges in
Speaker 2: federal judges in twenty seventeen was sixty nine. I mean,
Speaker 2: do you see this as a concern.
Speaker 4: Well, it's certainly something that people should be and are
Speaker 4: looking at. One thing. I wonder about those figures. I
Speaker 4: suspect that those figures include senior judges. And it's important
Speaker 4: to emphasize that a senior judge is a judge who
Speaker 4: may well be sitting and hearing cases, but under the statute,
Speaker 4: a senior judge can hear cases only to the extent
Speaker 4: authorized by the chief Judge or the Circuit Council. And
Speaker 4: the one of the things we haven't mentioned in our
Speaker 4: discussion of the very lengthy proceedings here is that at
Speaker 4: the very start Chief Judge Moore was urging Judge Newman
Speaker 4: to take senior status, and Judge Newman refused. And I'm
Speaker 4: sure that a very large part of her refusal reason
Speaker 4: for the refusal was that her ability to hear cases
Speaker 4: would then be entirely dependent on whether the Chief Judge
Speaker 4: allowed it. And that suggests to me that another line
Speaker 4: of possible reform here, and it addresses exactly the problem
Speaker 4: you focused on. It. It's something we need to be
Speaker 4: looking at. One possibility would be again procedural. I'm a proceduralist,
Speaker 4: and I do look for procedural solutions. But if a
Speaker 4: judge who is in a position to take senior status
Speaker 4: could be assured that her ability in the future to
Speaker 4: hear cases was not dependent on a single individual, or
Speaker 4: perhaps even on the members of that circuit's council, the
Speaker 4: judge might be willing to go ahead, confident that it
Speaker 4: will be a different group, perhaps with some channels of review,
Speaker 4: so that the judge's ability to hear cases would not
Speaker 4: be controlled by a single individual or a small group
Speaker 4: of her colleagues.
Speaker 2: So I found this somewhat concerning Eliza Shatzman, founder of
Speaker 2: the Legal Accountability Project, said, we hear from a lot
Speaker 2: of clerks working for judges who are too old to serve.
Speaker 2: In most instances, law clerks and other judicial employees stay
Speaker 2: silent due to potential reputational harms that could result from
Speaker 2: blowing the whistle. And that rings true because the legal
Speaker 2: profession sometimes seems very small and things get around quickly.
Speaker 2: What can be done well?
Speaker 4: I think, first of all, the Judicial Conference has adopted
Speaker 4: some procedures that are designed to deal with that situation.
Speaker 4: This was done in the wake of the allegation of
Speaker 4: sexual harassment, which is a different kind of problem but
Speaker 4: calls for a similar solution, because again, the concern was,
Speaker 4: and there's certainly some reason to recognize that concern. The
Speaker 4: concern was that law clerks and other court employees who
Speaker 4: were in the best position to identify either misconduct or
Speaker 4: disability on the part of the judge, were not reporting
Speaker 4: it because of the sphere of retaliation. As I said,
Speaker 4: the Judicial Conference has taken some steps, they can probably
Speaker 4: do more. I mean, my own thought has been to
Speaker 4: establish a kind of portal through which any employee with
Speaker 4: a concern about a judge, whether it's misconduct or disability,
Speaker 4: could communicate that to the chief judge, and the chief
Speaker 4: judge would then investigate it while at the same time
Speaker 4: protecting the employee from retaliation. There are limits to that, obviously,
Speaker 4: because as you say, it's a small profession, and in
Speaker 4: a small court for example, or a court with only
Speaker 4: a handful of judges, it's very difficult to do that.
Speaker 4: But I think there's probably more, even more that the
Speaker 4: judiciary could do. But I want to emphasize the judiciary
Speaker 4: is at this point quite sensitive to that, and they
Speaker 4: are trying through eder procedures, anonymous reporting, reporting to judiciary
Speaker 4: officials outside the circuit. They're trying a number of things
Speaker 4: to do that. But it is more, as you say,
Speaker 4: the fear of employees is very very real.
Speaker 2: And Arthur, at one point, Judge Newman's attorney said they
Speaker 2: would appeal to the Supreme Court if necessary. Is this
Speaker 2: a case that the Supreme Court would want to take?
Speaker 4: If the District court ruling is affirmed by the Court
Speaker 4: of Appeals, as I expect it would be, that can
Speaker 4: be taken to the Supreme Court discretionary review. I would
Speaker 4: doubt very much that the Court would want to get
Speaker 4: involved in this. The system is in place. The way
Speaker 4: to deal with it, I think is through the Judicial
Speaker 4: Conference and through Congress. I mean, we haven't talked much
Speaker 4: about Congress here. This system was basically established in nineteen eighty.
Speaker 4: There was some tweaks in what was in nineteen ninety
Speaker 4: and two thousand and two in a statute I helped
Speaker 4: to write, but even that's now more than twenty years
Speaker 4: and this is something that Congress might want to take
Speaker 4: another look at. Unfortunately, given the polarization and gridlock in Washington,
Speaker 4: I don't hold out much hope for that, but I
Speaker 4: would not expect the Supreme Court to get involved.
Speaker 2: Are there before I let you go, will you sort
Speaker 2: of recap where Judge Newman can.
Speaker 4: Appeal capitulate Again, we have the two tracks here, and
Speaker 4: it really, as you've mentioned, at the outset, there's just
Speaker 4: so much going on it's sometimes hard to disentangle these.
Speaker 4: But the order of the Judicial Conference Committee can be
Speaker 4: reviewed by the Judicial Conference, so we may yet see that.
Speaker 4: I don't expect it, but we might see it. Turning
Speaker 4: now to the District Court proceeding. The District Court proceeding
Speaker 4: is still going on, because, as you mentioned, not all
Speaker 4: of the claims were dismissed. Not all of accounts and
Speaker 4: the complaint were dismissed, so there will be further briefing
Speaker 4: and perhaps arguments on the rest of the case. Judge
Speaker 4: Cooper will then enter a final judgment, which I expect
Speaker 4: will probably throw out the whole case. And then at
Speaker 4: that point, with a final judgment against her, Judge Newman
Speaker 4: could appeal to the DC Court of Appeals, and given
Speaker 4: the precedent and the DC Court of Appeals, I would
Speaker 4: expect that to be a firm So at this point,
Speaker 4: if somebody asked me, you know, what is the channel
Speaker 4: most likely to give Judge Newman some kind of relief,
Speaker 4: it would probably be the full judicial conference, but I
Speaker 4: think the odds are against that also.
Speaker 2: Well, Judge Newman certainly took every legal path open to
Speaker 2: challenge this suspension. You have to say that thanks so
Speaker 2: much Arthur for helping untangle all this. That's Professor Arthur
Speaker 2: Hellman of the University of Pittsburgh Law School, and that's
Speaker 2: it for this edition of the Bloomberg Law Podcast. Remember
Speaker 2: you can always get the latest legal news by subscribing
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Speaker 2: at Bloomberg dot com, slash podcast slash Law. I'm June
Speaker 2: Grosso and this is Bloomberg