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- Judge Pauline Newman is 96 and says colleagues are trying to force her out over petty complaints.
- But she had an unnamed law clerk run errands and retaliated against an aide, an investigation found.
- Legal commentators are split if Newman's use of a clerk is unethical or part of a tradition.
An influential 96-year-old appeals judge whose mental fitness for the job has been called into question had a law clerk do her grocery shopping and drive her to doctor appointments, according to a new decision.
Judge Pauline Newman has been accused by other judges on the Federal Circuit of refusing to cooperate with an investigation into her health, triggered by her struggles with technology, her alleged delays writing opinions, and claims that she threatened to have a paralegal arrested.
In a new decision, they elaborated on complaints by courthouse staff — including claims by the paralegal that one of Newman's clerks would call him in the middle of the night, and an affidavit from another Newman clerk who asked to be reassigned over the "drama, politics and stress" that accompanied the investigation.
One of the things that raised "serious concerns about Judge Newman's ability to manage her chambers" according to a special three-judge committee investigating Newman was a claim by the paralegal, who wasn't named, that the same clerk who called him in the middle of the night would shop for Newman's groceries and schlep her to medical appointments.
Newman's dynamics with her clerks might seem odd. But historically, the ties between clerks and judges have always been murky and more intimate than most professional relationships – and if a clerk didn't like it, they stayed quiet, because their boss had lifetime tenure. Arthur Hellman, a professor emeritus at the University of Pittsburgh law school, said specifically that driving judges around is nothing new.
"I think both Justice [Hugo] Black and Justice [Felix] Frankfurter did that," he said. "I don't think anyone thought there was something wrong with that." Some of Black's clerks even lived with him.
To others, however, Newman's alleged behavior flies in the face of efforts to professionalize the judicial workplace.
"Many judges ask their law clerks to handle nonjudicial tasks: dog walking, laundry, those sorts of things," said Aliza Shatzman, a lawyer who founded the Legal Accountability Project after she was harassed as a clerk. "I think they do it because they fear the judge would fire them."
One clerk quit over "drama, politics, and stress"
The Federal Circuit, where Newman has served since 1984, was created to hear appeals in a few niche areas of federal law, like patents, veterans' benefits, and government contracts. Newman, a former chemist, has become known for her dissents, especially in patent cases.
But lately, Newman's work has dragged. From last May through this April, she "took four times as long to write half the opinions while sitting on half the number of cases as her colleagues," the three judges wrote, and "still has a backlog of seven opinions" that have been pending for an average of 230 days. The paralegal claimed she told him that she'd sometimes nod off working on her couch.
Newman's lawyers from the New Civil Liberties Alliance, and two former colleagues, have said she is as sharp as ever. They say her work on lengthy, high-stakes dissents isn't captured in the data, and want the case against her considered by another appeals court so that the same judges who might be witnesses to her supposed mental decline aren't investigating it.
The investigating judges have said they're following the proper procedure, and it's Newman who has reacted inappropriately.
When Kimberly Moore, the court's chief judge, emailed Newman about her clerk's late-night calls to the paralegal, Newman said she didn't think the complaint was "significant" – and cc'd a list of about 95 judges and staff, exposing the confidential complaint, according to the decision.
The "drama, politics, and stress" of the investigation became too much for one of Newman's four clerks. In April, that clerk asked to be transferred to a judge after learning that "other law clerks were assisting Judge Newman in her defense of these proceedings," he said in an affidavit.
Greg Dolin, one of Newman's former clerks who is defending her in the disciplinary case, said judges' chambers are a "sacred" domain, one they have historically been allowed to run as they see fit.
Even if one of her clerks called a paralegal in the middle of the night, "my response would be, 'so what?'" Dolin said. "Judges run their chambers how they run their chambers."
The big law firms where many clerks end up working have a similar 24/7 work mentality, he noted.
"It's made up in prestige," he said. "It's made up in interesting work."
Life tenure can breed intimacy — and exploitation
Judges have long had close connections with their clerks. The coauthor of a 1989 handbook for federal clerks wrote that the relationship between clerks and judges was "magic," one that went "far beyond the employer-employee status."
Hellman, the law professor, said even car rides with esteemed jurists can provide opportunities for clerks to discuss cases or be regaled with stories from the judges' careers.
"There's a compensating benefit," he said. "To sit at the feet, metaphorically, of Judge Newman, is an opportunity that any aspiring patent lawyer would welcome."
But there are lines judges shouldn't cross. The code of conduct for federal judges bars them from using chambers staff for certain extra-judicial activities (running errands isn't specifically listed). It also calls for judges to be "patient, dignified, respectful, and courteous" with their staff, and hold the staff to similar standards.
Alvin Rubin, the late judge who co-authored the 1989 handbook, "temporarily 'adopted' his clerks and their loved ones, making them a part of his extended family," his coauthor, a former clerk, wrote. Some of them "helped babysit his grandchildren, or accompanied the judge on personal errands."
"On more than one occasion, Judge Rubin's clerks would work with him while sitting beside his sick bed, where he reviewed his briefs in his pajamas, recuperating from an operation or an infection or a particularly unpleasant cancer treatment," she wrote.
To Shatzman, who runs the clerk advocacy group, the Newman case illustrates a downside of life tenure for judges.
"There's an enormous generational divide," she said, "which is why it's so important that we get young, diverse judges — fresh blood — on the bench."
A special committee of Moore and two other judges has now recommended that Newman be sidelined for a year, citing both her delayed opinions and her refusal to cooperate with the probe. But in the meantime, she still has three clerks in her chambers — and it's anyone's guess what they're up to.
The clerk who allegedly made the late-night calls declined to answer basic questions from the special committee, invoking her Fifth Amendment right against self-incrimination about 60 times, a transcript shows.
In the meantime, Newman is still looking for a new judicial assistant.