Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: When children say they identify as something other than their
Speaker 2: sex at school, do they become mere creatures of the state,
Speaker 2: or do their fit parents still have the fundamental right
Speaker 2: to make decisions regarding their care.
Speaker 3: The emerging legal battle over pronoun protocol in public schools
Speaker 3: has nothing to do with grammar and everything to do
Speaker 3: with gender identity. Some parents are suing schools that keep
Speaker 3: their children's use of new pronouns secret, claiming it's a
Speaker 3: violation of their constitutional right to direct the upbringing of
Speaker 3: their children. The Ludlow, Massachusetts School Committee is being sued
Speaker 3: over a teacher's failure to notify parents that their eleven
Speaker 3: year old began using different preferred pronouns. A federal judge
Speaker 3: dismissed the parent's complaint, but the First Circuit Court of
Speaker 3: Appeals could revive it, and at oral arguments, the judges
Speaker 3: seem to be wrestling with the issues. Here are judges
Speaker 3: Julie Reichelman and Kermit Lepez.
Speaker 4: I think gender identity is clearly very important to everyone,
Speaker 4: and there are many things that happen in school every
Speaker 4: day that would qualify is less important than that. So
Speaker 4: do you really see no limiting principle between something like
Speaker 4: the gender identity of your child and you know who
Speaker 4: your child may have played with during recess that day.
Speaker 4: Are you really saying there's no difference there?
Speaker 1: But you seem to be assert bottom line that the
Speaker 1: rights of the student to preclude disclosure of this request
Speaker 1: to use pronouns trump's the right of the parents to
Speaker 1: know what's going on with respect to the child's gender identity.
Speaker 1: Bottom line, you are asserting.
Speaker 5: That, aren't you joining me?
Speaker 3: Is Audrey Anderson, head of the higher education practice at
Speaker 3: Bassbari and Simms. Audrey explained why the parents are suing here.
Speaker 6: The school where their children middle schoolers attended, have a
Speaker 6: policy that's not an unusual policy that says, if the
Speaker 6: students come to personnel in the school and say that
Speaker 6: they want to change their name, change their pronoun to
Speaker 6: the opposite gender that they were born into, the school
Speaker 6: will work with them to do that, and also we'll
Speaker 6: keep that information from the student's parents if the students
Speaker 6: ask for it to be kept from their parents. So
Speaker 6: the parents here were aware that one of their children
Speaker 6: was experiencing some questions about their gender and actually reached
Speaker 6: out to the school proactively to say, we don't want
Speaker 6: you to talk to our child about this, and the school, nevertheless,
Speaker 6: behind the parents' backs, talk to the child, started calling
Speaker 6: the child by a different name, use different pronouns, and
Speaker 6: the parents, understandably were very upset about this.
Speaker 3: What surprises me about this is that at that age,
Speaker 3: if your kid seems aggressive, gets into a fight with someone,
Speaker 3: the teachers are on the phone, are calling you in,
Speaker 3: and yet they don't want to tell them about this
Speaker 3: very important aspect of their kid's life.
Speaker 6: The countervailing policy decision here, and I think one reason
Speaker 6: why the parents are going to have a particularly hard
Speaker 6: time winning this case is if there's a Massachusetts law
Speaker 6: that requires schools to not discriminate against students because of
Speaker 6: their gender identity. And so this school has decided that
Speaker 6: in order to carry out that duty, they need to
Speaker 6: keep that information about the student private if the student
Speaker 6: asks for it to be private. And as the district
Speaker 6: court opinion says, that law doesn't that any age limits
Speaker 6: as to when this right to non discrimination on the
Speaker 6: basis of gender identity starts. So the school district here says, well,
Speaker 6: we have this date law that says we are not
Speaker 6: allowed to discriminate on the basis of gender identity. And
Speaker 6: there are some students for which it won't be safe
Speaker 6: for them at home. If their parents know that they
Speaker 6: are going by a different gender identity, it may become
Speaker 6: psychologically unsafe for them at home. So that's the countervailing thing.
Speaker 6: And why this is different in the school's mind from
Speaker 6: your child god in a fight, or your child through
Speaker 6: up at school, or all the other things that happen
Speaker 6: to kids at schools that the school does tell parents about.
Speaker 3: I want to be clear on something. Did the school
Speaker 3: just call the child by preferred pronouns or did the
Speaker 3: school do more than that?
Speaker 6: They also had somebody at the school meet with child
Speaker 6: regularly to talk to them about how they were feeling
Speaker 6: and be a resource person for them. And what The
Speaker 6: parents here alleged that in that way they were actually
Speaker 6: giving mental health treatment to their child without the parent's consent. Now,
Speaker 6: the district court found that they hadn't adequately alleged facts
Speaker 6: to support a conclusion that the child was receiving mental
Speaker 6: health treatment, though the district court kind of threw that
Speaker 6: out based on the factual allegation. You know, so they
Speaker 6: were saying it wasn't just calling them by different names.
Speaker 6: They were actually giving their child counseling mental health treatment
Speaker 6: that they did not agree to, which would be a
Speaker 6: more serious allegation if the district court had supported it.
Speaker 3: The district Court used a standard, a very tough standard,
Speaker 3: shocking the conscience. Tell us what that standard is and
Speaker 3: is it appropriate in this case? Is it the correct
Speaker 3: standard in this case?
Speaker 4: Well?
Speaker 6: Yes, the parents here are alleging that their substantive due
Speaker 6: process rights were violated, and the court I think used
Speaker 6: the right standards to figure that out. You know, the
Speaker 6: parents in the Court of Appeals have said that the
Speaker 6: district court kind of made that standard extra tough. But
Speaker 6: the cases I've looked at seemed to require that the
Speaker 6: facts alleged really have to shock the conscience, and they're
Speaker 6: usually looking for something where the state actor has intentionally
Speaker 6: inflicted harm on the person who is suing. So think
Speaker 6: about you know, one of the cases I saw where
Speaker 6: there actually was substantive due process adequately alleged was where
Speaker 6: a school coach had intentionally used a hard object to
Speaker 6: hit a student in the face. That shocked the conscience.
Speaker 6: But there's lots of things where students are hurt, where
Speaker 6: it might be upsetting, but it doesn't reach that shock.
Speaker 6: The conscience standard and substantive due process is a very
Speaker 6: tricky legal standard that lots of judges think should be circumscribed.
Speaker 6: That there should be very few things that we find
Speaker 6: are protected by substantive due process. So what's established is
Speaker 6: the right to marry, the right to have children. So
Speaker 6: they want to keep the range of things that are
Speaker 6: within substantive due process really small. Now these parents say that, well,
Speaker 6: what's within substantive due process is the right to raise
Speaker 6: your children as you see fit. The thing they run
Speaker 6: into there is that there are Supreme court cases that
Speaker 6: support that. But what they support is the right to
Speaker 6: raise your children as you see fit in a prime
Speaker 6: at school setting. So there are old cases that say
Speaker 6: that the state cannot prohibit the teaching of German in
Speaker 6: private schools when parents want their children taught German. It
Speaker 6: doesn't say that the public schools have to teach German.
Speaker 6: There's a case saying that you can't require students to
Speaker 6: attend public schools, they have to also be allowed to
Speaker 6: attend private school So to me, those cases only say
Speaker 6: that these parents have a right to send their children
Speaker 6: to a school that would not have a policy like this,
Speaker 6: and there are lots of private schools that would not
Speaker 6: have a policy like this. I think it's much harder
Speaker 6: to say that within the public schools they get to
Speaker 6: have a right to say what the policy is on
Speaker 6: something like this. Here's my caveat. I'm surprised that they
Speaker 6: haven't raised a religious argument. I think that they'd have
Speaker 6: a stronger argument if they were also raising some kind
Speaker 6: of a free exercise argument that our religion also supports
Speaker 6: the idea that you are the gender that you're born into,
Speaker 6: and so for you to be teaching our child something
Speaker 6: other than that and supporting them transitioning when we've told
Speaker 6: you not to violate our religious rights. But they haven't
Speaker 6: argued that in this case.
Speaker 3: And on that public private school issue, Judge Reichlman said
Speaker 3: that one of the basic rights that parents have is
Speaker 3: to decide whether to keep their children in private or
Speaker 3: public school, and if a school doesn't disclose information about
Speaker 3: a child's gender identity, then parents lose the ability to
Speaker 3: make a really meaningful decision about whether to keep the
Speaker 3: child in that school or move the child to another school.
Speaker 6: Interesting There's a case in Maryland that went to the
Speaker 6: Fourth Circuit where the parents challenged the school policy. None
Speaker 6: of their kids, to their knowledge, had taking any advice
Speaker 6: from the school, or had tried to change their gender
Speaker 6: or anything like that, and the court said that they
Speaker 6: lacked standing to challenge the policy. And they said, hey,
Speaker 6: wait a minute, we don't even know if we have
Speaker 6: standing because the school won't tell us if our kids
Speaker 6: have come forward to use a different name and pronoun
Speaker 6: at school. And this just isn't fair. You're keeping us
Speaker 6: from even having standing to challenge the policy. And the
Speaker 6: Fourth Circuit said, yeah, we understand you're in kind of
Speaker 6: a tough spot, but we in other situations, mostly around
Speaker 6: national security cases, we prevent people from challenging a government
Speaker 6: policy where they don't know that they're on the terrorism
Speaker 6: watch list. For example, they don't know that they are
Speaker 6: being bied on, but they think they're being bied on
Speaker 6: in air quotes being surveiled by the government, and you
Speaker 6: have to allege some kind of facts that can lead
Speaker 6: the court to believe that you are actually being injured
Speaker 6: by the policy. Now Here's these parents have no problem
Speaker 6: with that because they have a good claim of actual
Speaker 6: injury because they know their students were hurt. But the
Speaker 6: Fourth Circuits dealt with that and it was a two
Speaker 6: one decision, but found that the parents last standing to
Speaker 6: challenge the policy, and what the parents should do that
Speaker 6: case said was use the ballot box. What they need
Speaker 6: to do is vote in a new school board that
Speaker 6: will change the policy that it wasn't for the court.
Speaker 3: So this first Circuit decision will be the highest court
Speaker 3: ruling on the merits of this argument.
Speaker 6: I believe that should be the case. And now we're
Speaker 6: only on a motion to dismiss, but yeah, it will
Speaker 6: be on the merits, where the for circus cases only
Speaker 6: on standing. They didn't hit the merits at all. But
Speaker 6: what's interesting to me is that all of the court
Speaker 6: that have addressed this have said that they don't like
Speaker 6: these school policies. They think these school policies are wrong
Speaker 6: headed and inappropriate, but that doesn't mean that they have
Speaker 6: the kind of shock the conscience a fact that you
Speaker 6: need for a substantive due process violation.
Speaker 3: There's a case before the Eleventh Circuit which is very conservative,
Speaker 3: so there might end up being some kind of split
Speaker 3: in the circuits.
Speaker 6: Yeah, I definitely agree with that I think that this
Speaker 6: is an issue that some conservative court will find that
Speaker 6: at least a complaint can go forward, and then the
Speaker 6: question will be whether the Supreme Court gets interested enough
Speaker 6: at that point, just when you have a decision on
Speaker 6: a motion to dismiss, or whether they want a case
Speaker 6: with a little bit more factual development, something that goes
Speaker 6: to a summary judgment motion at least or maybe even
Speaker 6: a trial before they decide to weigh in on this,
Speaker 6: you know, when the Supreme Court. If when the Supreme
Speaker 6: Court weighs into this, I think that some of the
Speaker 6: justices will have a hard time because the conservative side
Speaker 6: of the Supreme Court wants very much to have a
Speaker 6: very very narrow set of circumstances where substantive due process
Speaker 6: protects rights and justice. Thomas doesn't think that there is
Speaker 6: such a thing a substantive due process. On the other hand,
Speaker 6: I would believe them to from a policy angle, be
Speaker 6: very concerned about these kinds.
Speaker 1: Of school policies.
Speaker 6: So how they will thread that needle, I think will
Speaker 6: be very interesting to watch because you know, again there's
Speaker 6: very well settled law that says that at least curriculum
Speaker 6: now this isn't really curriculum, but that public schools get
Speaker 6: to choose their own curriculum and parents don't get a
Speaker 6: say in that except through the school board members if
Speaker 6: they elect. That's how parents get a saying curriculum.
Speaker 3: So, according to the Conservative group Parents Defending Education, more
Speaker 3: than one forty school districts in thirty seven states discourage
Speaker 3: or bar staff from telling parents about a school's transgender
Speaker 3: status or gender identity without their permission. So just how
Speaker 3: big an issue is this?
Speaker 6: There are certainly some communities where I think that there
Speaker 6: are you know, more and more children who are you know,
Speaker 6: between teenagers who are saying that they're trands or that
Speaker 6: they want to use a different pronoun or they want
Speaker 6: to be gender fluid or without a gender, and schools
Speaker 6: are you know, accommodating that. I don't think these policies
Speaker 6: are really unusual. I also though, from a policy perspective,
Speaker 6: I can see that parents would be very, very concerned
Speaker 6: about it. But I can also be the school's reasons
Speaker 6: for doing it, that schools want to be a place
Speaker 6: of psychological safety for students, and as the district court said,
Speaker 6: you know, they could imagine that it would be a
Speaker 6: much better policy that the school supports the student in
Speaker 6: sharing that information with their parents. You know, that can
Speaker 6: be a really tricky thing. And so, for example, I
Speaker 6: wouldn't expect the school to tell me if my child
Speaker 6: was making out in the whole way with another child.
Speaker 6: That might really upset me. It might be against a
Speaker 6: rule i'd said at home, it might be against my
Speaker 6: religious beliefs, but I wouldn't expect the school to tell me.
Speaker 6: And so you know, there are a range of things
Speaker 6: that we don't expect schools to tell us and that
Speaker 6: school don't tell us. So where this fits on the continuum,
Speaker 6: I think people can have good faith disagreements about and
Speaker 6: as concerning as I can see it would be as
Speaker 6: a parent, I can also understand the school's side of this.
Speaker 5: Well.
Speaker 3: Certainly this case is being watched nationally. There were more
Speaker 3: than one hundred amikas briefs filed, including from nineteen states
Speaker 3: that supported the parents' position and fifteen states that supported
Speaker 3: the school's position. So we'll see other first circuit rules.
Speaker 3: Thanks so much, Audrey. That's Audrey Anderson, head of the
Speaker 3: Higher Education practice at bess Berry and Simms. Ninety eight
Speaker 3: year old Judge Paul Newman was inducted into the ip
Speaker 3: Watchdog Hall of Fame at the Patent Law Blogs Annual
Speaker 3: conference in Virginia on Monday. Two days later, she was
Speaker 3: suspended by the Federal Circuit for one year for refusing
Speaker 3: to undergo medical testing as part of an investigation into
Speaker 3: her mental fitness to sit on the bench. The investigation
Speaker 3: was launched in late March, and a proceeding that usually
Speaker 3: unfolds behind the scenes, played out in public. Newman, who's
Speaker 3: been on the Federal Circuit Court of Appeals for nearly
Speaker 3: four decades, has vowed to find the decision joining me
Speaker 3: is ethics. Law expert Arthur Hellman, a professor at the
Speaker 3: University of Pittsburgh School of Law, tell us about this
Speaker 3: unanimous order from the Federal Circuit.
Speaker 7: Well, what's in the order is that George Newman is
Speaker 7: suspended for one year from hearing new cases. That's both
Speaker 7: panel cases and bank cases. And the one year starts
Speaker 7: from the date of the order, which was yesterday, So
Speaker 7: it's really on top of the suspensions that have been
Speaker 7: issued starting back in March. George Newman has not been
Speaker 7: hearing cases now for about six months, and this will
Speaker 7: add a full year to the suspension, and it also
Speaker 7: two provisos. One is that it's renewable if she continues
Speaker 7: to refuse to cooperate with the committee, but the Committee
Speaker 7: and the Council can reconsider if she does cooperate.
Speaker 3: This comes after a one hundred and eleven page report
Speaker 3: based on more than twenty interviews with members of the
Speaker 3: Court staff that Judge Newman had been having troubles recalling events,
Speaker 3: conversations and information. Does this order have anything to do
Speaker 3: with that report or is this just about her not
Speaker 3: cooperating with the committee and not going for medical tests.
Speaker 7: That's actually one of the problematic aspects of this proceeding
Speaker 7: because in a way, the Council, like the Special Committee,
Speaker 7: is trying to have it both ways. This suspension order
Speaker 7: is predicated solely on refusal to cooperate, which is a
Speaker 7: form of misconduct. And yet the underlying concern, which is subject,
Speaker 7: as you point out, of extensive discussion in the Special
Speaker 7: Committee report as well as the Judicial Council order, the
Speaker 7: underlying concern is with disability. And so even though the
Speaker 7: real subject of the original complaint was disability, the Special
Speaker 7: Committee of the Chief Judge and the Council have turned
Speaker 7: it technically into a misconduct proceeding this supposedly narrow issue
Speaker 7: of failure to cooperate.
Speaker 5: Is there precedent for this order?
Speaker 7: Well, there's something of a precedent in the proceedings a
Speaker 7: few years ago involving District Judge John Adams, and there
Speaker 7: were some similarities and some differences. But the present situation
Speaker 7: where the real concern is disability and Judge Adams, the
Speaker 7: evidence was really of somebody who was campankerous and didn't
Speaker 7: play well with his fellow judge. There was really very
Speaker 7: little evidence there to suggest our disability, and in the
Speaker 7: end the order requiring a examination was withdrawn. So there
Speaker 7: are some parallels, but nothing like this has happened in
Speaker 7: the forty plus years. Under the Judicial Conduct and Disability Act,
Speaker 7: a nineteen eighty.
Speaker 3: Law allows for judicial sanctions by colleagues as long as
Speaker 3: the punishment is not removal from office or indefinite suspension.
Speaker 5: So does this order fit within that law?
Speaker 7: Well, that's one of the big questions that is going
Speaker 7: to have to be addressed in the first instance by
Speaker 7: the Review Committee, the Committee on Judicial Conduct and Disability
Speaker 7: of the Judicial Conference, because the provision you're referring to
Speaker 7: does limit suspensions to ordering that on a temporary basis
Speaker 7: for a time certain, no further cases be assigned. So
Speaker 7: I regard that as the conjunctive two sets of requirements.
Speaker 7: It has to be on a temporary basis and for
Speaker 7: a time certain. And the question will be when you
Speaker 7: have a one year order that is renewable, does that
Speaker 7: satisfy the statutory language and does it fit with the
Speaker 7: aim of the statute. I mean, the statute has a
Speaker 7: very interesting history because it was a cooperative enterprise the
Speaker 7: drafting by judges and members of Congress, and they were
Speaker 7: very much aware that under the generally accepted interpretation of
Speaker 7: Article three of the Constitution, federal judges can be removed
Speaker 7: from office only through the process of impeachment by the
Speaker 7: House and trial in the Senate, and they, by putting
Speaker 7: that provision in, didn't want to have a backdoor removal.
Speaker 7: So the question is whether you have an order that
Speaker 7: is functionally equivalent to removing a judge from office. So,
Speaker 7: for example, I think a three year suspension probably would
Speaker 7: one year that's renewable, that's an open question. There is
Speaker 7: no authoritative decision about that.
Speaker 3: Or is there precedent for a court forcing a judge
Speaker 3: to undergo medical testing. That's what was an issue here, Right,
Speaker 3: She's submitted tests from her own neurologist and forensic psychiatrist,
Speaker 3: but they wanted her to go to someone they approved.
Speaker 6: Right.
Speaker 7: Well, again, the Adams case is the closest parallel, and
Speaker 7: there the Committee on Judicial Conduct and Disability, as you
Speaker 7: pointed out, that will be the review body that committee
Speaker 7: in terms of what we'll call administrative precedent or precedent
Speaker 7: within the misconduct system. That committee has already said it
Speaker 7: is permissible under the statute. But there's also a lawsuit
Speaker 7: pending that Judge Newman is filed in the District Court,
Speaker 7: and that issue has not been settled by a court,
Speaker 7: and there's an initial question there whether it is even
Speaker 7: something that the district court can consider, because there's another
Speaker 7: provision in the statute that says that the only review
Speaker 7: of council orders is through the Committee of the Judicial
Speaker 7: Conference and there's to be no review anywhere else. And
Speaker 7: the District of Columbia Circuit, in a proceeding involving Judge
Speaker 7: John McBride of Texas, has said that as applied, challenges
Speaker 7: to the statute are barred in federal District Court by
Speaker 7: that preclusion provision, So we don't have a judicial precedent
Speaker 7: and we may never get one.
Speaker 3: Do you think that she has a good chance in
Speaker 3: her challenge at the Committee on Judicial Conduct and Disability?
Speaker 7: I think she does not have a good chance of
Speaker 7: getting a ruling that the Council cannot order her to
Speaker 7: undergo some kind of testing. I think the Conduct Committee
Speaker 7: may be concerned about the process that was followed here,
Speaker 7: several aspects of it. But for example, the fact that
Speaker 7: the Council suspended Judge Newman from hearing cases before this
Speaker 7: process was formally initiated, but tying that suspension to the
Speaker 7: concerns about disability. One of the emails that is included
Speaker 7: in the voluminous attachments to the order issued yesterday, where
Speaker 7: the Chief Judge refers specifically to a Council order directing
Speaker 7: that Judge Newman not hear any new cases while this
Speaker 7: process is ongoing, and the reference to the process is
Speaker 7: pretty clearly the process under the Act, and as I
Speaker 7: read the Act, that is simply not permissible. So you
Speaker 7: have right at the outset what I believe was a
Speaker 7: serious procedural misstep, and I could see the Judicial Conduct Committee,
Speaker 7: saying that tainted the whole process and it should, if
Speaker 7: not startle over again, it should be redone. And I
Speaker 7: would like to see that done by a different circuit.
Speaker 7: I think that would be much better way of handling it.
Speaker 7: The Federal Circuit has adamantly refused to transfer, to request
Speaker 7: a transfer to another circuit, which is something that's permitted
Speaker 7: under the rules. No, it's not specifically in the Act,
Speaker 7: but it is in the rules. And I think I
Speaker 7: would certainly have much more confidence in this proceeding if
Speaker 7: the findings of fact and the investigation were carried out
Speaker 7: by judges who had no connection to Judge Newman or
Speaker 7: to the judges who are sitting on the Council of
Speaker 7: the Federal Circuit.
Speaker 3: Coming up next, I'll continue this conversation with Professor Arthur
Speaker 3: Hellman and we'll discuss whether a mandatory retirement age for
Speaker 3: federal judges would be constitutional.
Speaker 5: This is Bloomberg.
Speaker 3: I've been talking to Professor Arthur Hellman of the University
Speaker 3: of Pittsburgh Law School about the Federal Circuit suspending ninety
Speaker 3: eight year old Judge Pauline Neuman, the Court's eldest jurist,
Speaker 3: for one year as punishment for not submitting to medical
Speaker 3: testing as part of a disability and misconduct investigation to
Speaker 3: look into her mental capacity to sit on the bench.
Speaker 3: According to a twenty twenty Law Review article by Francis Shin,
Speaker 3: the average age of federal judges, the average.
Speaker 5: Age is sixty nine.
Speaker 3: Would it be constitutional to have a mandatory retirement age
Speaker 3: for judges?
Speaker 7: It would not be constitutional to have a statutory in
Speaker 7: retirement age. Now I think to have that, and it
Speaker 7: might be a good idea or might not, But in
Speaker 7: my view, it would require a constitutional amendment. I mean,
Speaker 7: you're certainly correct that there's widening concern about aging figures
Speaker 7: in all three branches of the national government today. The
Speaker 7: judiciary is actually unique in that Congress has provided a
Speaker 7: process for dealing with such a situations. In fact, in
Speaker 7: addition to the process and to the Act, there's an
Speaker 7: even older statute that allows the Circuit Council to certify
Speaker 7: a judge or with essentially mandatory retirement. But something that
Speaker 7: perhaps should have been more of a focus here than
Speaker 7: it has been. So in most instances, these processes work well.
Speaker 7: They work behind the scenes. When they're successful, we don't
Speaker 7: even know it happened. All we see is an announcement
Speaker 7: that Judge Smith is taking senior status. That's all we see.
Speaker 7: What we don't know is what happens. For example, and
Speaker 7: in some cases I'm familiar with, in one instance, you've
Speaker 7: had a judge who was no longer competent. He resisted retiring.
Speaker 7: His wife eventually persuaded him that his whole legacy would
Speaker 7: be at risk if there were a public proceeded. Another case,
Speaker 7: the judge's daughter persuaded him. So while this particular proceeding
Speaker 7: is very, very troubling in many many respects, we should
Speaker 7: not see it as typical. It is extremely atypical. It
Speaker 7: is a failure of the system.
Speaker 3: Why isn't the Chief Judge then use the process you
Speaker 3: just talked about.
Speaker 7: That's a very very good question. Over the course of
Speaker 7: this there now I think been three separate documents where
Speaker 7: the Chief Judge or the Special Committee and are now
Speaker 7: the Circuit Council has attempted to justify the refusal to transfer.
Speaker 7: And I've read all of those. I just don't think
Speaker 7: they're persuasive. I think that everybody's interests would have been
Speaker 7: served could still be served today by having this considered
Speaker 7: by a group of judges who have no connection with
Speaker 7: Judge Newman, no connection with the other judges of the
Speaker 7: Federal Circuit. And in fact, one of the striking things
Speaker 7: about this, because the proceeding here has been though totally
Speaker 7: in house. I mean, in every other circuit, both the
Speaker 7: Special Investigating Committee and the Circuit Council would be composed
Speaker 7: of a mix of district judges and circuit judges. You
Speaker 7: don't have that here. This is the one circuit where
Speaker 7: the only judges participating in the Special Committee, the only
Speaker 7: judges participating serving on the Judicial Council, are all Judge
Speaker 7: Newman's colleagues. The other thing that reinforces that is that
Speaker 7: in most of the Special Committee proceedings, including the Atoms Proceeding,
Speaker 7: which the Circuit Council keeps going back to as the model,
Speaker 7: and the Atoms Proceeding, and in most cases where there's
Speaker 7: a special Committee, the special Committee hires an outside council
Speaker 7: to work with it. And that's important and desirable for
Speaker 7: two reasons. One is that investigation is not something judges
Speaker 7: are trained to do. But you find a law firm
Speaker 7: or a lawyer whose specialty is investigating, for example, investigating
Speaker 7: alleged doing by some corporate insider, a corporate director, so
Speaker 7: we don't have the expertise of an outside council. Second,
Speaker 7: and maybe more important, the outside council brings an outsider perspective.
Speaker 7: You can every kind of investigation benefits from that, whether
Speaker 7: it's in a corporation, government agency, or even a faculty.
Speaker 7: Somebody coming in from the outside and who doesn't know
Speaker 7: the participants can ask the tough questions, can ask about
Speaker 7: things that the insiders might not even be aware of
Speaker 7: because it's so so so much a part of their existence.
Speaker 7: So not only was there no transfer here, there was
Speaker 7: no outside council to provide that external perspective.
Speaker 3: This ends up being such a complex case. And you
Speaker 3: know this area, so, oh, well, is there anything you
Speaker 3: want to add?
Speaker 7: I have not seen discussed anywhere, And then maybe I'm
Speaker 7: off based on this, but I'll mention it just to
Speaker 7: hopefully get it on the table. I mean, one of
Speaker 7: the things that the council might have done would be
Speaker 7: to issue the order, but to stay it, you know,
Speaker 7: and we've seen all these cases challenges to government practices
Speaker 7: where just the court orders are stayed. I mean, let
Speaker 7: Judge Newman sit, let us sit on the November and
Speaker 7: December calendars, and I think that would be the best
Speaker 7: way of finding out whether she is confident to sit.
Speaker 7: You know, we have the oral arguments which are public,
Speaker 7: and then the judge's private conference. We would find out
Speaker 7: not maybe not definitively, but that would be far better
Speaker 7: evidence of her competence to participate in judicial decision making
Speaker 7: than the evidence in the report, which is all interactions
Speaker 7: with staff. The Special Committee refused to interview the judges
Speaker 7: that was not part of excluded that from their investigation.
Speaker 7: So it's a very very limited body. It's a large
Speaker 7: body of information, but it's a limited body.
Speaker 3: Well, this is certainly not the end of the story.
Speaker 3: Thanks so much, Arthur. That's Professor Arthur Hellman of the
Speaker 3: University of Pittsburgh Law School.
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