Weekly take: Newman probe must be backed by evidence beyond delays
A misconduct probe into the 95-year-old Federal Circuit judge has caused a stir, but are delayed opinions really a good enough reason?
Let me make one thing immediately clear: I will not be offering an opinion on whether Judge Pauline Newman, the 95-year-old veteran of the US Court of Appeals for the Federal Circuit, is still able to carry out her duties effectively.
That determination is for counsel who regularly appear before her, her fellow judges, and, potentially, her friends and family.
But the complaint and misconduct probe against Newman instigated by the court’s chief judge, Kimberly Moore, sparks some interesting and indeed hugely sensitive considerations.
Since Moore’s original complaint, issued on March 24, there have been some headline-grabbing developments, including Newman’s alleged failure to cooperate and her assertion that she is the “only person” who cares about the patent and innovation system.
But let’s strip aside the sensationalist aspects behind this story and look at the nature of Moore’s complaint.
It is alleged that Newman takes much longer to issue opinions than her fellow judges despite having had a reduced caseload since 2022 due to health concerns.
From October 2021 to March 2023, Newman took an average of 199 days to issue opinions compared to a court average of 60 days. She also frequently took 30 days or more to vote on colleagues’ opinions, despite a court-imposed deadline of five business days.
There are two sides to this.
On one hand, litigating parties will want a swift resolution to their cases. Being left in limbo for longer than is necessary helps nobody, though it probably helps defendants in some cases. Presumably, as well as to avoid backlogs, this is why the court imposes these timelines in the first place.
On the other, I’d be willing to wager that most intellectual property litigants would rather wait a little longer for a carefully reasoned judgment than one that was prepared (whether hurriedly or not) with a court deadline in mind.
We can leave it up for debate whether 199 days is too long to issue an opinion. It doesn’t help with managing the court’s backlog to wait that long for a judgment, but we in the UK have on more than a few occasions waited the best part of a year for a ruling – most recently in the InterDigital v Lenovo dispute.
I invite anyone to correct me if I am wrong, but I’ve not seen any complaints from lawyers about the quality of Newman’s judgments or reasoning of late.
There is, however, a note in Moore’s complaint that a Newman opinion had to be “substantially rewritten by her panel members prior to its issuance” and that several of her cases have had to be reassigned due to delays in her publishing opinions.
The quality of that opinion Moore references, and the extent to which it needed reworking, will only be truly known by Newman’s fellow judges.
Nevertheless, the crux of the complaint seems to be more about the time taken to reach conclusions than the quality of those conclusions.
If she takes longer than other judges but the conclusions (albeit sometimes not the reasoning) are generally accepted, is there a serious problem?
I’m not suggesting that the other Federal Circuit judges rush their judgments, by the way.
What is not in doubt is that Newman is, for the most part, enormously well thought of.
My colleague Rani Mehta, in thisexcellent article, has quoted multiple sources who speak highly of the judge. They praise her famous dissents and talk about how her experience in patent prosecution has shaped her views today.
Many of her dissents have been credited with shaping the court’s policies over decades.
From a journalist-and-observer’s perspective, it’s always far more interesting to have a dissenting opinion to consider rather than a simple, “I agree”.
Then we come to the more sensitive aspect of all of this. Age.
Newman is 95. It’s a sad fact of life that our cognitive abilities become impaired as we age.
This is presumably why courts in some jurisdictions impose a mandatory retirement age on judges.
In the US, federal judges have no mandatory retirement date and are appointed for life.
This contrasts with many jurisdictions.
In England and Wales, judges are allowed to serve until they are 75. In Germany, a justice's term at the Federal Constitutional Court ends after 12 years or when they reach 68.
Australian judges serve until they are 70, and in India, the retirement age is 65 for the high courts and 67 for the Supreme Court.
In recent years the retirement age in both England and Wales and India was extended. In 2021, it was 70 in England and Wales; prior to 2022, Indian judges had to retire at 62 (high courts) and 65 (Supreme Court).
Clearly, the fact that the age thresholds have been extended – the latest increases were not the first – is a sign that judges can continue to serve effectively far beyond the normal retirement age for many.
Opinion is largely split on whether mandatory retirement should be considered in the US, and the Newman debate has exacerbated that.
Moore’s complaint says Newman “routinely” makes statements in open court and during deliberative proceedings that demonstrate a lack of awareness of the issues.
The complaint, despite being somewhat vague (and which is redacted in part), adds that concerns have been raised that Newman “may suffer from impairment of cognitive abilities”.
But by other accounts, her cognitive skills remain. Observers at the recent Fordham IP Conference, where Newman spoke, said the judge was as sharp as ever.
As a personal aside, my late grandmother lived to be 101. She was able to recall incredible detail from her own and my childhood, as well as various historical events, until her final years.
One thing that’s for sure is that this debate should not be limited to age, which, as cheesy as it sounds, is just a number.
What would of course prove to be problematic was if there was a fundamental flaw with Newman’s judgments and opinions.
But, at the moment, it doesn’t seem as though that’s the main argument being made.