A judge silenced by procedure, not verdict

Reason reports that Judge Pauline Newman of the Federal Circuit has again been excluded from the court's group photograph — a ritual that may seem ceremonial but is, in truth, a public declaration of who belongs and who does not. She has been suspended from her caseload by a panel of her own colleagues, who cite concerns about her fitness, a proceeding she contests and that has never been resolved by the only body the Constitution designates for the removal of a federal judge: the Congress of the United States, acting through impeachment.

I labored long over the principle that judges of the federal courts must hold their offices during good behavior, and that the removal of a judge who has committed no crime, been convicted by no jury, and been impeached by no Congress is not discipline — it is usurpation. The constitutional framers placed impeachment in the legislature precisely because they did not trust any single institution, courts included, to police themselves when the stakes were high enough. A court that may suspend and effectively exile its own members by internal vote has placed itself above the very charter that grants it authority.

The story, as Reason tells it, is that this exclusion is part of a longer pattern — what the publication calls, pointedly, a 'stealth impeachment.' I would not have chosen different words. When the outward form of law is preserved while its substance is quietly strangled, the citizen is doubly harmed: once by the injustice itself, and again by the pretense that no injustice has occurred. Power, I have always held, is most dangerous not when it announces itself but when it disguises itself as procedure.

Nor is the identity of Judge Newman the central point. I would hold the same position were she the most disagreeable jurist on the continent. The structure of the protection is what matters. An independent judiciary is not a gift government grants to popular judges; it is a wall erected against the moment when a judge becomes inconvenient to those who hold power around her. Remove the wall for one, and you have established that the wall may always be removed — which is to say, you have no wall at all.

I confess I cannot speak with authority to the specific medical or administrative claims made in these proceedings, as the technical particulars lie beyond the dossier presented to me, and I will not pretend otherwise. What I can say — and say with the full weight of my conviction — is that the remedy for a federal judge who has genuinely become unable to serve is clear, constitutional, and deliberately difficult: impeachment by the House, trial by the Senate, removal by two-thirds vote. That difficulty is not a flaw in the design. It is the design. Every shortcut around it purchases a little present convenience at the price of a great future danger.

An educated citizenry ought to watch this proceeding with the same wariness it would give to any quiet consolidation of power. Courts that can silence their own members without legislative warrant are courts that have claimed a sovereignty they were never granted. I would urge the Congress — whose authority and whose duty this is — to look steadily at what is being done in the name of administration, and ask itself whether it is willing to let its constitutional prerogative be exercised by others on its behalf, quietly, in a photograph no one was permitted to take.