Responsive to the letter from Judge Pauline Newman's counsel sent June 15th (see "Judge Newman Matter Continues"), the Special Committee directing the Federal Circuit's inquiry regarding Judge Newman's fitness for continued service on the Court (consisting of Chief Judge Moore, former Chief Judge Prost, and Judge Taranto) issued a per curiam response.

The response sets forth the basis and scope of the June 1st Order which identified Judge Newman's refusal to comply with the Committee's demands, including to "undergo medical examinations, to provide medical records, and to sit for an interview with the Committee" set forth in prior Order, as in itself judicial misconduct under Rule 4(a)(5) ("Cognizable misconduct includes refusing, without good cause shown, to cooperate in the investigation of a complaint or enforcement of a decision rendered under these Rules.")   The response provides a recitation of the Committee's previous orders that parallels the history set forth in counsel's letter, with certain differences in characterization thereof.  For example, regarding their April 6th Order, the response characterizes the issue as "Judge Newman's disclosure of a confidential employment dispute matter and statements made in regard to that matter."  The April 20th Order, according to the response, was expanded to include potential misconduct related to "Judge Newman's alleged retaliatory, unprofessional, and abusive behavior towards her own and other court staff."  Not included in counsel's letter were Orders dated April 17th, May 3rd, and May 16th regarding the Committee's demands that Judge Newman provide medical records and undergo medical testing including "neurological and neuropsychological testing."

Counsel's letter purported to ask the Committee for "clarification" regarding the status of the grounds for misconduct asserted in these various Orders, characterizing them as 1) allegations of mental or physical disability; 2) improper behavior towards staff; and 3) failure/refusal to cooperate.  The Committee's Order makes plain that:

All the foregoing aspects of the investigation remain open and pending before the Committee.  No part of the investigation has been terminated.  In particular, the investigation into whether Judge Newman suffers from a disability that impairs her ability to perform the duties of her office remains ongoing.

But the Committee's response also makes plain that these various grounds of complaint cannot substantively go forward without Judge Newman's cooperation (or compliance) which is not forthcoming.  Accordingly the Committee has Ordered briefing by July 5th and a hearing on July 13th to address the somewhat meta (or Kafkaesque) question of whether Judge Newman's refusal to comply with these Orders is itself judicial misconduct.  This question unavoidably presents the due process and Constitutional issues raised in Judge Newman's complaint to the D.C. District Court (see "Judge Newman and the On-Going Attempts to Remove Her from the Federal Circuit") but which (apparently) will not be addressed in the upcoming briefing and hearing.  The Committee's asserted basis for this course of action is that:

[T]he Committee's investigation into whether Judge Newman suffers from such a disability has been seriously impeded by Judge Newman's refusal to undergo neurological and neuropsychological examinations, to provide medical records, and to sit for an interview with the Committee.  Her refusal to cooperate in those respects impairs the ability of the Committee to gather sufficient information to come to a definitive conclusion and recommendation for the Judicial Council on the disability issue.

The consequences to Judge Newman are clearly laid out in the response, wherein the Committee asserts its rationale that "it would be most efficient for the Committee to focus immediate proceedings on a more discrete issue on which the Committee could likely reach a conclusion and make a final recommendation to the Judicial Council despite Judge Newman's lack of cooperation," i.e. a finding of judicial misconduct without needing to establish the purported prerequisites of mental, psychological, or physical disability that was the presumed basis for the Special Committee's actions in the first place.

The response also denies Judge Newman's counsel's request that the hearing be open to the public.  The reason for this decision is that traditionally such inquiries on judicial fitness are kept confidential under the Judicial Conduct and Disability Act of 1980 and by the Rules for Judicial-Conduct and Judicial-Disability Proceedings, according to the Committee.  This creates a "strong presumption" for the Committee that the proceedings should remain confidential.  As a practical matter, the response asserts that confidentiality "facilitates the investigative process" and its beneficial effects in this regard "ha[ve] been almost universally accepted," citing First Amendment Coalition v. Judicial Inquiry & Review Bd., 784 F.2d 467, 475 (3d Cir. 1986).  In particular, despite there having been "a great deal about the current proceedings" that have been open to the public the Committee "has taken particular care to ensure that publicly released material does not identify witnesses or confidential details of witness statements and that the public releases would not compromise the investigative process."  Opening the hearing to the public would pose "grave risk[s]" of "inadvertent" disclosure of such information in the Committee's view.  The response also contends that there is no prejudice to Judge Newman by maintaining this confidentiality because "all affidavit and deposition transcripts" have been turned over to the Judge's counsel (thus making their existence public knowledge).  Because this evidence has provided the basis for the various Orders by the Special Committee, and whether Judge Newman's non-compliance therewith constitutes judicial misconduct raises the possibility that argument on this points might result in disclosure of at least some of this evidence, which the Committee does not want to happen.  And in attempts to prevent such disclosure the Committee asserts their fears that witnesses will "censor themselves in real time" to prevent disclosure.

The response also provides the Committee's rebuttal to the case law cited by Judge Newman's counsel.  Waller v. Georgia is inapposite, the response asserts, because that was a criminal case, and thus precluded from being held in private based on a defendant's Sixth Amendment right to a public trial.  The response also contradicts Judge Newman's counsel's argument that the hearing will be based on the paper record, because inter alia "the entire record has not been made public" (although they have been provided to counsel).

Nevertheless, the Committee "will consider" releasing a transcript redacted as to witness identities and other confidential material in due course after the hearing is held.  This would permit "some public transparency" and "allow a more considered approach to redacting [confidential] material" than could be achieved at a live hearing, while at the same time it would "not hamper the efficiency of the Committee's investigation by impeding the flow of the argument itself."

Briefing will be submitted by July 5th and a hearing transcript sometime thereafter (although it is unlikely that there will be publication of the recorded hearing in view of the Committee's discussion in its response).