On the Exclusion of Judge Newman

Reason reports that the Federal Circuit Court of Appeals has, once again, removed Judge Pauline Newman from its official group photograph — a step taken during an ongoing dispute over her fitness to continue serving. The headline calls it a 'stealth impeachment.' I am not in a position to assess the particulars of the medical or administrative record behind this dispute; I mark that as inference beyond what the source supplies. But the shape of the question is one I know well, and it troubles me.

The Constitution provides one remedy for removing a federal judge from office: impeachment by the House and conviction by the Senate. It provides tenure during good behavior precisely to insulate the judiciary from the pressures that attend popular passion and institutional politics. A court that manages a sitting judge through staged social exclusion — through the quiet but pointed removal from a photograph, through the withdrawal of chambers staff and case assignments — is imposing a sanction that carries the practical weight of removal while evading the accountability of formal process.

I do not argue that a court has no legitimate interest in the fitness of its members. Plainly it does. But the remedy for unfitness is a remedy with a record, with notice, with the opportunity to answer, and with review. What Reason describes sounds less like a proceeding and more like a siege — and a siege, however politely conducted, is not due process. The term 'due process,' properly understood, means that the form of the proceeding must match the gravity of what is at stake. What could be graver than the effective end of a judicial appointment held under the Constitution itself?

There is also a broader harm to consider. Courts derive their authority not from force but from the confidence that the public and the bar place in their impartiality and regularity. Every departure from transparent procedure — even a departure directed against one judge, even a departure arguably justified on its facts — chips at that confidence. When the institution that enforces procedural rights on every litigant who comes before it appears to deny those same rights to one of its own members, the lesson drawn by observers will not be a narrow one.

I would urge the parties and the institution: if there is a genuine case to be made that Judge Newman cannot fulfill her duties, make it formally, on the record, through the channels the law provides — and accept the result of that process, whatever it is. If the existing statutory channels for judicial disability are inadequate, then the appropriate remedy is legislation to improve them, not the informal social pressure that Reason's account describes. The rule of law is not a principle one may set aside for convenience in a hard case; it is most necessary precisely when the case is hard.