New details in a probe examining whether the Federal Circuit’s oldest and longest-serving member is fit to remain on the bench highlight issues about anti-discrimination protections in the judiciary and efforts to obtain medical information about the judge.
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The clash between Newman and her colleagues on the US Court of Appeals for the Federal Circuit has sparked renewed attention on the consequences of lifetime appointments for federal judges.
A Federal Circuit Judicial Council panel re-upped the demand for a medical exam on May 16, emphasizing the information is necessary to investigate an alleged mental decline that’s suspected to be affecting Newman’s work. So far, Newman has refused to comply, saying the requests are unconstitutionally invasive and violate her privacy.
1. Are there legal limits on job-related medical exams?
The Americans with Disabilities Act restricts employer requests for medical exams. The law permits employers to require job applicants to pass medical exams, but only if they are requiring all potential workers to take the same tests, according to the US Equal Employment Opportunity Commission.
Employer latitude to ask current workers to submit to medical exams is even narrower.
Employers can’t call for such tests unless they need medical documentation in relation to a worker’s request for a disability accommodation or if they can’t perform their job due to a medical condition, the EEOC says.
2. Do those limits apply to federal judges?
Employees of the federal judiciary aren’t covered by federal anti-discrimination law, including the ADA.
The US government was exempted as an employer when those anti-bias laws were passed, said Aliza Shatzman, president and founder of the Legal Accountability Project. Congress expanded the laws’ coverage in 1995 to the executive and legislative branches, but not the judiciary, she said.
House lawmakers heard testimony last year in support of the Judiciary Accountability Act, which would extend anti-discrimination protections to judiciary employees, but the bill never made it out of committee.
3. What is the legal basis for Newman’s exam?
The Federal Circuit panel has called for Newman to submit to the exam under the Judicial Conduct and Disability Act of 1980, which says judges have a duty to cooperate in investigations against them. As implemented, the law specifically gives panels the power to consult “appropriate experts or other professionals”—including through medical or psychological examinations—and to review medical records in their probes.
If Newman refuses to facilitate the investigation, her colleagues would be allowed to take that lack of participation into account, and it could be elevated as new grounds for a misconduct probe.
Under Rule 13, Newman could still be found to have a disability without an exam. The panel has said it wants her to undergo the exam “to remove the cloud that will linger over all cases in which she participates while such concerns exist.”
4. How can Judge Newman object to the exam?
While Newman isn’t eligible to bring claims under federal anti-discrimination law, she addressed the medical exam in a lawsuit last week, which alleges the panel has misstated numerous details about her health.
As Newman has been suspended from hearing cases until the probe is resolved, she said the exam and records request are acting as an improper hurdle to carrying out her duties as an Article III judge. She also takes aim at the “vagueness” of the Judicial Conduct and Disability Act’s medical exam provision, which Newman said “vests virtually complete discretion in the hands of a special committee to determine when the compliance with such demands may be compelled.”
Newman suggested impeachment is the only way she can be forcibly removed from office.
5. How likely is impeachment?
Such a move would be rare, as the House has impeached only 15 judges, and the Senate convicted eight of them.
“In modern history, the impeached judges were charged with perjury, soliciting and accepting bribes, and sexual assault,” said Ryan Vacca, a professor at University of New Hampshire School of Law. “Judge Newman’s alleged conduct isn’t in the same ballpark as those charges.”
Another hurdle to impeachment: Rep. Jim Jordan, the Ohio Republican who chairs the House committee that would initiate impeachment proceedings, is one of Newman’s allies.
“Judge Newman is an exemplary jurist who has long stood for the Constitution and earned every right to keep her seat on the bench and make decisions about her future herself,” Jordan spokesperson Russell Dye said in a statement to Bloomberg Law.
To Learn More:
- ‘Paranoid’ Incidents Necessitate Newman Exam, Fed. Cir. Says
- Newman’s Judicial Fitness Lawsuit Enters ‘Uncharted Territory’
- Judge Fitness Probe Cites Nonexistent Heart Attack, Newman Says
- Standoff Over 95-Year-Old Judge Shows Downside of Lifetime Jobs
- Federal Circuit Chief Moore Takes Action To Unseat Judge Newman
—With assistance from Emily Wilkins
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