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Case number 24-5173.

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Pauline Newman, Honorable Circuit Judge, Appellant, versus Kimberly A. Moore, Honorable, in her official capacities as Chief Judge of the United States Court of Appeals for the Federal Circuit, Chair of the Judicial Council of the Federal Circuit, and Chair of the Special Committee of the Judicial Council of the Federal Circuit et al.

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Mr. Dolin for the Appellant, Ms.

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Patterson for the Appellees.

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Good morning, Your Honors, and may it please the Court.

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For over two years, and as a result of a defendant's actions, Judge Newman, a duly appointed federal judge, has been unable to exercise any functions or powers of her office which she holds.

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She has heard no cases at panel or on bond level.

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She has written no opinions, has ruled on no motions, voted on no petitions, seen no briefs or pre-publications opinions.

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This state of affairs constitutes a practical removal from office, something that the Constitution and the Disability Act both prohibit.

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And there are three separate reasons why defendant's actions are unlawful.

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Defendants have functionally affected unconstitutional removal from office in violation of Article 3 and Section 354A3.

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Second, defendants have exceeded powers granted by the Disability Act, which to the extent is constitutional at all, does not authorize seriatim removal.

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In fact, Section 354A2A, Roman 1, speaks only of removal on temporary basis for time certain.

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And third,

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These entire proceedings violate basic norms of due process, which at a minimum require a neutral adjudicator in the first instance.

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I want to begin by emphasizing that ruling for the defendants undermines the independence of every holder of judicial office.

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If defendants are correct that a temporary suspension from all judicial functions is constitutionally permissible, then it would follow that any judge can be debarred

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completely depart from exercising judicial functions, and that such department would not be constitutionally problematic so long as the judge continues to receive his or her salary.

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And it would not be constitutionally problematic whether it's done by fellow judges or another branch.

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And that simply cannot be current.

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Councilor, your constitutional arguments are forceful and raise a lot of novel and difficult questions.

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But as you know, as a panel, we're bound by our decision in McBride, which on its face, at least, would seem to entirely foreclose your as applied and statutory challenges.

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So you've offered us in the briefs a few ways around McBride, and I'm curious which of those you think is the strongest.

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I think two-part answer to that question, Judge Garcia.

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First, I think we have facial challenge to the extent if the statute is construed to mean that it allows suspension of a judge for any period of time from all judicial functions, it's unconstitutional on its face.

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Of course, through a doctrine of constitutional avoidance, the statute can be construed more narrowly.

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That's a facial challenge, and that is not explicitly precluded by McBride.

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Second, I think McBride, on its own terms, even leaving aside the subsequent history, on its own terms accepts this case.

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Footnote 5 and McBride explicitly reserves the question of what happens when a suspension of sufficient length affects an effective removal.

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You say, Mr. Dillon, that there's a facial challenge so long and that your facial challenge succeeds if it allows effective removal.

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But that's not my understanding of the standard we use in a facial challenge.

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It's are there any constitutional applications of the statute?

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And the statute isn't limited to practical removals from duty.

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It has all kinds of lesser effects that I thought your brief was

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was acknowledging for absolutely.

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Absolutely.

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We don't challenge, for example, the idea that judicial counsel can impose reprimands.

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We don't challenge the idea judicial counsel can collect information and certify a judge for impeachment for judicial conference and then to the House of Representatives.

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We don't challenge even the idea that judicial counsel could say that, look, a particular judge had a particularly

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untoward experience with a particular group of lawyers and therefore should not interact with those lawyers in a courtroom.

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So absolutely.

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What about a backlog?

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I mean, I know there's been statutory action since Chandler, but the court in Chandler said that it was not unconstitutional for the Judicial Council to pause new assignments to a judge in order to allow management and catching up with the backlog.

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Yes, Judge Pollard.

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So again, two-part answer to that question.

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First, generally, backlog is not dealt with under this act.

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So this is dealt with under a different statute.

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The question about constitutionality of judicial counsel actions vis-a-vis a judge's workload.

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Absolutely.

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And I think the fundamental difference there is when a judge has a backlog, that means he's still accessing judicial functions.

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When a federal judge, an Article III judge is appointed, he has two separate protections.

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One, there's a salary protection, which Judge Newman has not been deprived of.

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And two, the judge gets to hold office during good behavior.

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Holding office must mean something.

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And that must mean, given the precedent, that the judge gets to judicially decide questions submitted.

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And so if a judge has a backlog, by definition means that that judge still has questions before him or her deciding those in a judicial manner.

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I fear that I interrupted you in answering Dr. Garcia's question about which of the ways of distinguishing McBride you think is the most.

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Can I follow up on the facial challenge and then we'll get to the ways around McBride.

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So I have a similar question just about how facial challenge work because the appellee is going to say,

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You're asking us to hold the provision authorizing temporary time certain assignments, case suspensions, facially unconstitutional.

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And that the way that analysis works is that if there are a substantial number of constitutional applications of that provision, putting aside what happened in this case, then your facial challenge fails.

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What is wrong about that?

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Respectfully, Your Honor, I disagree.

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I think the way to think about our official challenge is that

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First, you have to figure out what that special provision means.

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And if it means that it allows wholesale suspension of all judicial functions, then it's unconstitutional.

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If it means something else, then you're right.

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Our facial challenge fails.

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And then the question is, is a judicial council's actions fit into that something else framework?

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And so this is my next question, which is that argument that if it reaches this far, then it is facially unconstitutional.

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That sounds a lot like an over-breath argument, which we in the Supreme Court have only applied in the First Amendment context, not a normal facial challenge, which again, we can take as given.

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There are many unconstitutional applications, but if there's a substantial number of legitimate ones, a facial challenge fails.

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So, again, I respectfully disagree.

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I don't think it's an overbred argument.

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I think it's a statutory construction argument.

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The statute means either A or B. And if it means A, then what the council is doing is ultravirus.

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And if it means B, meaning it allows authorized wholesale suspension,

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or removal by practical effects, then it's unconstitutional.

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So you're right.

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The court can absolutely avoid the constitutional problem.

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But in order to get there, they'd have to construe the statute more narrowly.

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And the upshot is that under either scenario, appellants prevail.

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I don't think that's exactly consistent with our precedent or the Supreme Court's precedent on overbreath.

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I mean, on facial challenges.

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If there are a substantial number of constitutional applications, then there's not a facial constitutional problem.

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So we don't go to the step of interpreting it narrowly to avoid the problem.

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So you're jumping to the narrowing construction, I think, based on an assumption that you've met a factor that I'm not sure I see you having met.

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The notion that, I think you said that if the statute is unconstitutional because it allows, as one subset of its applications, that's my addition, but because it allows a full on suspension of duties.

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And I don't think that's enough to render it facially

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unconstitutional and therefore we don't get to the step being concerned about a narrowing construct.

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Is it as applied?

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I don't think it's quite correct.

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I think still the first step has to be, what does the statute actually allow?

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And so you're right.

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If the court concludes that the statute allows only some sort of temporary suspension when a judge still has, as in a backlog situation, still has judicial duties to accomplish, then you're right.

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We don't need to get to either as applied or facial challenge.

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We're done.

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But of course, that's not what's happening to Judge Newman.

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If a statute allows more, then it's a problem.

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Then it's a facial problem because the statute... I think that the way that the facial challenges work is that if whether or not a decision is constitutional rests with an administrative agency, which is what judicial counsel is, and it's purely their discretion, then

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then the statute authorizes them to do something that it cannot do and it's on its face unconstitutional.

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So the mere fact that they could act, behave constitutionally doesn't mean actually the statute is on its face constitutional.

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But Judge Christy, to get back to your, so first, as I mentioned, footnote five of McBride on its face,

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recognizes that there may be actions by judicial counsel that go so far beyond what either the statute or constitution authorizes that this court will not stay its hand.

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Well, this court will have jurisdiction to decide.

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Second, post McBride, there's two cases actually coming out of the federal circuit, Cosa v. Lee and SAS versus Iancu.

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The Supreme Court explicitly says on a

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almost identical language that has jurisdiction stripping provision.

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In that case, in the context of a patent act.

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Supreme Court explicitly says that jurisdiction stripping provisions only apply when the agency actually acts within the bounds provided by the statute.

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When the agency goes beyond what the statute authorizes, then the jurisdiction provisions have no effect because you have to be read in context of the whole statute.

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So this is our statutory argument.

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It's not so much that we argue that, look, a six-month suspension would have been OK, but Judge Newman was treated unfairly because she got a year plus.

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That would be beyond discourse jurisdiction.

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What we are arguing is that the statute to the extent it's constitutional authorizes a temporary suspension for time certain.

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A renewal by definition is not time certain.

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So this goes beyond what the statute authorizes, just like in a patent act when the court said,

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Federal Circuit cannot review director's decision whether or not to institute interpartisan review, but if the director chooses to kind of do half institution and half non-institution because that's not what statute authorizes, the courts can review that.

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So I think those are our two strongest arguments, footnote five and the fact that whether or not an agency acting ultra virus is for the court.

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So if this provision, as you're arguing, doesn't bar,

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Our review of a challenge that the Council acted in excess of its statutory authority.

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What does it bar?

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It certainly bars seriatim suspensions.

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What does the judicial review preclusion prohibit us from considering?

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Oh, OK.

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So for example.

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It's common.

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Right.

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So for example, if Judge Newman were to come to this court and said, in prior cases, judicial councils of other circuit suspended judges for six months, and here I am being suspended for a year, and that's inconsistent, and everybody should be treated the same, that would be barred.

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If Judge Newman said, look, I am

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You know, the court precluded me from hearing.

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I'm confused about that point because you spent a lot of time in your brief saying no one has been treated as severely as Judge Newman.

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But you just said if her argument was that she was being treated worse than other people, we couldn't hear that.

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That's true.

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I think the point that we made.

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We can't consider your argument that she's been treated worse than any other judge.

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No, I don't think that's

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You just said.

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Well, no, you can't.

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Something we could.

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You know, you're right.

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You shouldn't consider.

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You shouldn't get her relieved merely on the basis of disparate treatment.

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The reason we pointed out that nobody has been treated as poorly as Judge Newman is to show the court that no judicial counsel previously federal circuit, this court or any other judicial counsel

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has ever viewed its powers to fully remove judicial functions from a judge and do it on a seriatim repetitive basis.

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So it's not that she's treated more poorly, it's just to illustrate how everyone understood this, what everybody understood the statute to mean.

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We have not brought in equal protection.

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No, I mean, you were given an example and you just said disparate treatment can't be brought.

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Equal protection cannot be heard, but due process can.

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I think so because due process requires the process be fair itself, not that necessarily the equal protection is... A constitutional claim couldn't be brought.

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I think the constitutional claim, I think it would be just very hard to bring because each case is somewhat different and the Congress could decide that these intra-court disputes are best settled in the court so long as it doesn't transgress on the constitutional powers of a duly appointed judge.

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Are you making that distinction because you think McBride requires it?

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I think McBride does require it.

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I also think that, you know, the 357C has to mean something.

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So the jurisdiction strip and provision.

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And you see a due process claim as inherently.

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I mean, you said previously, and I didn't see this as exactly how you argued in your brief, but that you were in defending what you describe as a facial challenge from our

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understanding of Salerno, you said that in every case the Judicial Council has discretion and then in characterizing a due process claim as sort of a facial claim, are you saying that there is in every instance of the Judicial Council's assessment of a judge's conduct and meeting out of a potential limitation or guidance or discipline

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that in every case there's something wrong with what the counsel does?

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No, no.

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I think our claim is much more narrow than that.

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Our claim is simply a due process at its basic requires a neutral adjudicator.

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And in this case, this whole case began the very first order issued by Chief Judge Moore says on page two, I believe of that order says that the reason this process has begun is because other judges

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supposedly have complained about Judge Newman's alleged infirmities on the bench.

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So there are witnesses.

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It's not so much even, although that's also a problem that they're both prosecutors and judges, but there are witnesses and then they're evaluating essentially the veracity of their own statements, which is why, as we pointed out, it's not an equal protection challenge.

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It's an understanding of what the statute allows, which is why in every other case,

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that we've been able to find.

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And our police have not been able to point to anything contrary.

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In every other case, when a circuit judge was being investigated, and when one beyond the chief judge in evaluation, when it went to special committee, it's been transferred to another circuit.

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In fact, transfers have happened, even for district judges, when they live in close quarters.

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It's just happened for a judge of the DC district court.

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And so the due process is not that

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This court should superintend every single circuit that does something screwy.

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It's that at the very least, the people who are adjudicating the dispute, whether it's about disability or about misconduct, have to be neutral in their neutral adjudicators.

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Is that a facial challenge or is that an as applied challenge?

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It has to be sort of as applied challenge, but it's one of those things that

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It's a basic constitutional requirement.

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Of course, it has to be as applied because you only know whether or not due process violated based on what actually has happened.

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So you have to wait what happened.

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We're obviously back to McBride, which also involved a due process challenge to the way those proceedings were conducted.

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Right.

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That's true.

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Although there, the only question was whether or not the proceedings should have been started to begin with and not whether or not the ultimate adjudicators are essentially conflicted out.

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Mr. Villeneuve, you said that there's no examples of a misconduct investigation conducted within the judge's own circuit.

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On what basis do you, are you talking about published judicial decisions?

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Well, yes, because while published judicial council decisions, because once an investigation begins, want us to go past the chief judge.

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So there's it's a three sort of step process.

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There's a chief judge who can kind of give thumbs up or down.

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And then if it moves to special committee, special committee should report to go to judicial council once it moves to the special committee.

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And special committee makes a recommendation.

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Judicial counsel must publish a report.

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So whether an exonerates the judge or punishes the judge.

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So yes.

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But there can be, and you're distinguishing a case in which there may in fact be an investigation short of.

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Well, that could be essentially what a quick look where the chief judge says this has no merit and goes nowhere.

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So there's really not really an investigation.

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But anything that's really an investigation when there's a disputed question of fact has always been transferred somewhere else.

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And the way we know this is because there's not a single public decision and that police have not been able to identify one where things stayed in the circle.

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The closest they come is they cite the Adams case from the Sixth Circuit.

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Of course, Judge Adams was a district judge, but even there, every single judge in his district recused himself.

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And not only that, but then Chief Judge of the Sixth Circuit, who before going on to the Sixth Circuit, served on, not even with Judge Adams himself, but with his colleagues, served on the Northern District of Ohio because she knew personalities involved, she recused herself.

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So same thing just happened in Alaska, where the circuit judge from Alaska and a senior district judge because they all sit in the same courthouse with a judge was being investigated.

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They recused himself from judicial counsel.

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This is just dirty girl.

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It has never happened otherwise.

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And in two plus years of this litigation at police have not been able to point to a single case where there has not been a transfer.

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Do you distinguish between

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Or is there a distinction between the power or the authority of a court to do the investigation itself without transferring it?

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Is the investigation, is doing the investigation itself a violation of due process or is it acting on the outcome of the investigation?

[00:20:05] Speaker 00:
I don't think those two are separable because part of the investigation has also taken evidence.

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It's also potentially

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Expanding scope of investigation is potentially issue an interim orders.

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So I don't think those two are really just process rights.

[00:20:19] Speaker 06:
Respect to an investigator are very different than they are with respect to an adjudicator.

[00:20:24] Speaker 00:
Correct.

[00:20:24] Speaker 00:
But I think you're not entitled to.

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You're right.

[00:20:27] Speaker 06:
You're in a criminal context, which is definitely is not, you know, the police are investigating because they think you did it right.

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Of course, you are entitled to serve a prosecutor who's not conflicted out.

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But I think the the weirdness of this whole thing is that investigation adjudication all happening at once with the same people involved.

[00:20:43] Speaker 06:
And so not the same people.

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The council included many more people.

[00:20:47] Speaker 06:
The investigative committee was pretty small, as I recall, three.

[00:20:51] Speaker 00:
Three, yes.

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But of course, those people are also on the council.

[00:20:54] Speaker 06:
I understand that.

[00:20:55] Speaker 06:
I understand that.

[00:20:55] Speaker 06:
But the three investigators, it's not the same people making the decision by the council that are doing the investigation.

[00:21:03] Speaker 00:
Yeah, correct.

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But I think in this case, at least, it doesn't matter.

[00:21:08] Speaker 00:
Well, it doesn't matter for two reasons.

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One, because the investigators also get to issue what they view as binding orders.

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And it's because they view Judge Newman as being disobedient to those orders.

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that they've imposed additional sanctions.

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But also, and I go back to this notion that from the very beginning, there was, and this is not us, this is Chief Judge Moore, her opening order says that other judges have evidence that Judge Newman is not able to do her work.

[00:21:36] Speaker 00:
So she has not identified which of those judges are.

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So for all we know, it could be the investigators, could be people on the council, and that is ultimately the problem on the due process issue.

[00:21:46] Speaker 01:
Can you update us on the status of the ongoing proceedings pending motion for reconsideration back and forth?

[00:21:55] Speaker 00:
It remains pending.

[00:21:56] Speaker 00:
There is additional reports have been submitted.

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Some of them are now published on the Federal Circuit's website.

[00:22:03] Speaker 06:
Still pending before the council.

[00:22:04] Speaker 00:
Still pending before the council.

[00:22:06] Speaker 00:
Given the latest public order, we don't have much confidence that they will reconsider in any event.

[00:22:14] Speaker 00:
We're coming up by the time the reconsideration happens, we're coming up now on potential renewal for a third year.

[00:22:20] Speaker 00:
So if the council does not buy Dr. Filler's report.

[00:22:25] Speaker 06:
What do you think either an investigating committee or a council can do?

[00:22:32] Speaker 06:
What do you think is permissible for them to do if a judge engages in misconduct as part of an investigative process?

[00:22:41] Speaker 00:
They can use all the sanctions that are available under the Judicial Disability Act, but remove the judge completely from hearing cases.

[00:22:50] Speaker 00:
They can, of course, refer the matter to the House.

[00:22:53] Speaker 06:
All right, so they could refer it for impeachment.

[00:22:57] Speaker 06:
I assume that's not the only option.

[00:23:01] Speaker 06:
And so they can what?

[00:23:05] Speaker 00:
There can be reprimands.

[00:23:06] Speaker 00:
Depending on the misconduct, the counsel could choose to say that, look, with these particular lawyers, you don't get to hear cases because you've been misbehaving towards those lawyers.

[00:23:19] Speaker 06:
The misconduct alleged here is that the non-cooperative cooperation with the investigative process.

[00:23:26] Speaker 06:
So they need to do an investigation.

[00:23:29] Speaker 06:
I know you've challenged who should be doing it, but you haven't challenged that there was at least a legitimate basis for an investigation here.

[00:23:38] Speaker 06:
It's just your objection has been who does that?

[00:23:40] Speaker 00:
Well, we have challenged it, not on this court, but we have challenged the basis of the investigation.

[00:23:43] Speaker 06:
The argument says who does the investigation, not whether there should be an investigation.

[00:23:47] Speaker 06:
So I'm taking it on that basis.

[00:23:49] Speaker 06:
Okay.

[00:23:49] Speaker 06:
And so, and then when someone doesn't cooperate with the investigation, what are their options?

[00:23:55] Speaker 06:
Because a reprimand doesn't get them the information they need to conclude their investigation.

[00:24:00] Speaker 00:
So there are also mechanisms in the statute that allows the council to go to a district court, which would be a neutral adjudicator, and get a subpoena, which would be enforceable as any other subpoena, including by civil.

[00:24:10] Speaker 06:
They don't want documents.

[00:24:12] Speaker 06:
They want a medical designation.

[00:24:14] Speaker 00:
Well, they also wanted documents as well.

[00:24:16] Speaker 00:
So they wanted Judge Newman's medical records as well.

[00:24:18] Speaker 06:
I thought they were provided by now.

[00:24:19] Speaker 00:
They've been provided just to the experts.

[00:24:22] Speaker 00:
They have not been provided to the council, which is another point of contention between us and the council.

[00:24:26] Speaker 05:
And can one subpoena by subpoena or other judicial process?

[00:24:32] Speaker 05:
Require someone to undergo medical examination.

[00:24:35] Speaker 00:
Certainly, certainly in other contexts.

[00:24:37] Speaker 00:
Yes, we've sort of criminal context.

[00:24:39] Speaker 00:
We order people to go to undergo examination for competency.

[00:24:43] Speaker 00:
We're undergoing some donation for insanity.

[00:24:45] Speaker 00:
We undergo examination for to provide blood work.

[00:24:50] Speaker 00:
So certainly that can be done.

[00:24:52] Speaker 05:
But this is a less.

[00:24:56] Speaker 05:
Right, in the civil context, no.

[00:25:00] Speaker 00:
Well, in the civil context as well, I think you can order, for example, blood work to determine paternity.

[00:25:05] Speaker 00:
What?

[00:25:06] Speaker 00:
To determine paternity, for example.

[00:25:08] Speaker 05:
Paternity.

[00:25:08] Speaker 05:
So you characterize this as a effectively because renewable, a permanent bar on the judge doing work on the docket.

[00:25:20] Speaker 05:
But it seems significant that

[00:25:24] Speaker 05:
Neither have they ordered her to undergo medical examination per se, nor have they ordered her to stop hearing cases.

[00:25:35] Speaker 05:
They've given her a pressured, to be sure, option.

[00:25:41] Speaker 05:
If you don't submit to the investigation, then you aren't hearing cases.

[00:25:47] Speaker 05:
But if you do submit to the investigation,

[00:25:50] Speaker 05:
then you may continue to hear cases.

[00:25:52] Speaker 05:
So it's different from a permanent bar.

[00:25:56] Speaker 05:
So I don't think that's true for two reasons.

[00:25:58] Speaker 00:
And I think your question has one of the reasons embedded in it.

[00:26:04] Speaker 00:
And that word is may.

[00:26:06] Speaker 00:
At no point the Judicial Council suggests that if Judge Newman goes through the investigation, and in fact, if she bats it with flying colors,

[00:26:13] Speaker 00:
she goes back on the bench.

[00:26:15] Speaker 00:
That has never been suggested in any of the judicial council's orders or any of the briefs.

[00:26:19] Speaker 00:
So that will merely allow us to conclude our investigation and come to our conclusion, which will ultimately get on our own, including all the affidavits from the court staff, including apparently our own views as judges and our interaction with Judge Newman.

[00:26:33] Speaker 05:
So they were to say, and if, as you put it, she passes it with flying colors, she will return to her

[00:26:42] Speaker 00:
duties if it had said that would that be a cure for the constitutional i don't think so and this goes and so this goes to judge malat's initial question uh what what is the judicial council to do and i respectfully submit that there's only three ways for a judge to stop hearing cases and that's that resignation and impeachment there simply is no door number four

[00:27:07] Speaker 00:
And so if the judge is recalcitrant, if the judge is refusing to comply, if the judge is, in fact, if the judge is disabled, which Judge Newman is not, but if the judge were disabled, removing a judge from hearing cases simply by the order of her college is not what the Constitution provides.

[00:27:23] Speaker 05:
In fact... Wait, wait, but being disabled is not a high crime or misdemeanor.

[00:27:30] Speaker 00:
Well, of course, the Congress can determine for itself.

[00:27:32] Speaker 00:
And that actually is not judicially reviewable.

[00:27:35] Speaker 00:
What is high crime or misdemeanor?

[00:27:36] Speaker 05:
But just thinking about what the Constitution means in providing for impeachment, I mean, nor is having whatever impairments the committee of the Judicial Council of the Federal Circuit is investigating.

[00:27:51] Speaker 05:
That's also not a high crime or misdemeanor, nor even

[00:27:56] Speaker 05:
interfering with an investigation, I don't think.

[00:27:58] Speaker 05:
And so the notion that what's available is death, resignation or impeachment leaves the courts with no ability to govern themselves.

[00:28:10] Speaker 00:
But that I think is by design.

[00:28:11] Speaker 00:
But I think that's by design.

[00:28:13] Speaker 00:
The Constitution provided only three ways to protect the public from wayward judges.

[00:28:21] Speaker 00:
And that is death, resignation, or impeachment.

[00:28:23] Speaker 00:
And yes, that comes with some costs.

[00:28:26] Speaker 00:
And in fact, whether or not disability is high crime or misdemeanor, the concept of disability was considered even before the Constitution.

[00:28:35] Speaker 00:
Alexander Hamilton writes in Federalist 79 that it is better to occasionally risk a disabled judge being on the bench in part because mental disability is such an amorphous line than to have any mechanism for removal.

[00:28:49] Speaker 00:
So, Judge Muller, to your question fundamentally, what's the remedy?

[00:28:56] Speaker 00:
The remedy is what the Constitution provides, and that's impeachment.

[00:28:59] Speaker 00:
And I think that's a high bar.

[00:29:01] Speaker 06:
A subpoena for all of her medical records that were submitted to the expert or whoever it was they were submitted to.

[00:29:10] Speaker 06:
Would that be permissible?

[00:29:12] Speaker 00:
Yes, that's permissible because that's done under Article 3 power of a neutral district court like in any other civil proceedings.

[00:29:18] Speaker 00:
Judicial counsel would file a civil action against Judge Newman and but also the bottom line, whether they get the medical records or not, whether they adjudicate Judge Newman to be competent or not.

[00:29:27] Speaker 00:
The bottom line is they still cannot remove her from hearing cases if they think that she's incompetent.

[00:29:32] Speaker 06:
In fact, it gives I don't know why I have to go to district court.

[00:29:34] Speaker 06:
356 gives subpoena power to the councils and their special committees.

[00:29:39] Speaker 00:
Yes, but it's enforceable in a district court.

[00:29:40] Speaker 00:
Like there's a separate next subsection.

[00:29:42] Speaker 00:
They can issue the subpoena, which of course they've never done.

[00:29:45] Speaker 00:
And if we contest the subpoena or if we ignore it, they get to go to the district

[00:29:48] Speaker 06:
They don't have to go to district court to have the subpoena.

[00:29:50] Speaker 00:
Correct.

[00:29:52] Speaker 00:
Yes, that's true.

[00:29:53] Speaker 06:
And if she doesn't comply, what happens?

[00:29:55] Speaker 00:
Then they have to go to district court for enforcement.

[00:29:57] Speaker 06:
And what's the enforcement?

[00:29:58] Speaker 00:
The enforcement is through civil contempt.

[00:30:01] Speaker 06:
But I also wanted to... Civil contempt and misconduct that the council could take action on?

[00:30:08] Speaker 00:
No, I think the district court could could take usual actions, whether it's monetary penalties or whether it's jail time.

[00:30:15] Speaker 06:
But someone's held in contempt by a court.

[00:30:18] Speaker 00:
Right.

[00:30:19] Speaker 06:
I would think an investigating judicial counsel would be able to investigate that.

[00:30:23] Speaker 00:
Oh, absolutely.

[00:30:24] Speaker 00:
And that conduct.

[00:30:25] Speaker 00:
Yes, of course.

[00:30:26] Speaker 00:
Of course.

[00:30:27] Speaker 00:
The question is, what can they what punishment can they visit on Judge Newman?

[00:30:30] Speaker 00:
And the punishment is not removal from hearing cases.

[00:30:33] Speaker 05:
No, but it could be.

[00:30:35] Speaker 05:
I mean, in civil contempt cases, there's pressure put on the person until they comply.

[00:30:41] Speaker 00:
Yes.

[00:30:42] Speaker 00:
And so, yes, if a district judge wishes to jail Judge Newman until she complies, that's a different story, because again, it's done under Article 3 powers, and she's basically treated as any other litigant.

[00:30:54] Speaker 05:
They can have fines accrued.

[00:30:56] Speaker 05:
They can have fines accrued.

[00:30:59] Speaker 05:
But it's your position that they cannot touch the assignment.

[00:31:04] Speaker 00:
She's vested with judicial powers through the Constitution.

[00:31:08] Speaker 00:
That's where she derives her powers.

[00:31:10] Speaker 00:
Those powers cannot be withdrawn simply by an order of an administrative body.

[00:31:17] Speaker 05:
So this is not at all a comment on the existing case before us.

[00:31:22] Speaker 05:
We're just exploring your view of what powers the judiciary has

[00:31:30] Speaker 05:
to make sure that it is serving the public as intended.

[00:31:34] Speaker 05:
If somebody, if I had a serious brain injury and could no longer speak coherently but came into the office and continued to do my work and my colleagues had concerns whether

[00:32:00] Speaker 05:
It wasn't just a speech problem, but a bigger problem of brain injury.

[00:32:07] Speaker 05:
If the court wants to investigate in its responsibility to make sure that the Article III courts are serving the public, the only thing the court can do is imprison or fine that judge when they don't submit?

[00:32:27] Speaker 05:
To Tina, the judge for medical records.

[00:32:30] Speaker 00:
Yes.

[00:32:30] Speaker 05:
So I don't think that says I don't want to give them or maybe I haven't been and had that examination.

[00:32:37] Speaker 05:
I just.

[00:32:39] Speaker 00:
So I think I well, they can't say in prison or fine, so that's not a power given by the district court.

[00:32:46] Speaker 05:
Yes.

[00:32:47] Speaker 05:
And to you, it's less of a constitutional problem.

[00:32:49] Speaker 05:
District court.

[00:32:51] Speaker 05:
To.

[00:32:53] Speaker 05:
to fashion a contempt sanction against a circuit court judge than to have the Judicial Council, appealable to the Judicial Conference of the United States, do something analogous.

[00:33:08] Speaker 00:
Indeed.

[00:33:08] Speaker 00:
And the reason it's a lesser sanction is because in that hypothetical, the district court is not directly affecting your

[00:33:19] Speaker 00:
Article three powers.

[00:33:20] Speaker 00:
Now you may be sitting in jail and therefore can't show up to the courthouse and can't adjudicate cases because you're physically not there.

[00:33:27] Speaker 00:
And so it's an incidental effect on your powers, but not a direct effect.

[00:33:31] Speaker 00:
So your powers as a circuit court judge stem from the constitution and the commission that you were granted after having been nominated by the president confirmed by the Senate and then appointed.

[00:33:43] Speaker 06:
Could the council as a sanction for misconduct bar a judge from entering the courthouse?

[00:33:50] Speaker 00:
From being in a courthouse?

[00:33:53] Speaker 00:
I, so as we said in our brief, the constitution does deal with substance, not shadows.

[00:33:58] Speaker 06:
So if it's merely, if a judge by virtue of contempt prevents her from coming to the courthouse and hearing cases, that would be just an indirect effect.

[00:34:08] Speaker 06:
That would be fine.

[00:34:10] Speaker 06:
But so if the circuit counsel just prevents her from coming into the courthouse at all,

[00:34:18] Speaker 06:
then it would just be an indirect effect.

[00:34:20] Speaker 06:
Any impact on her ability to hear cases would be an indirect effect.

[00:34:23] Speaker 06:
I think I disagree because- It's a direct effect when the counsel does it, but it's an indirect effect when the judge does it.

[00:34:29] Speaker 00:
I think the point is that if it's sanctioned for misconduct, so as to prevent the judge from hearing cases, not so as to treat her like any other litigant who- They will say that they've done it because say you have, obviously not this case, but you have someone who's just really

[00:34:42] Speaker 06:
loud and noisy and pulling a china shop whenever they're in chambers and they go around throwing things and breaking things and yelling at other people they go you can't be in the courthouse you can't be in the courthouse we have to protect people from that

[00:35:01] Speaker 00:
The point is that the judge would have to be, whether they get to sit in their chambers, they would have to be able to go on the bench.

[00:35:08] Speaker 06:
Why wouldn't that apply to the same?

[00:35:10] Speaker 06:
I mean, I'm not understanding why you think a district court can accomplish something that the

[00:35:19] Speaker 06:
Council cannot, if they're both, you just said it was indirect.

[00:35:22] Speaker 06:
That's not a problem.

[00:35:23] Speaker 06:
This would be justified on the facts.

[00:35:26] Speaker 06:
They can't function in a professional manner physically inside the courthouse.

[00:35:31] Speaker 06:
That's not this case at all, to be clear.

[00:35:33] Speaker 06:
But that's my hypothetical.

[00:35:35] Speaker 06:
And so the same thing is, you can't come in this building.

[00:35:37] Speaker 00:
So I would answer it by analogy.

[00:35:39] Speaker 00:
So if, for example, a district court, not even in this context, in any other context.

[00:35:43] Speaker 06:
Why is it different when the council does it than when a district court does it for contempt?

[00:35:47] Speaker 00:
So if I may, Judge Mollett, so by analogy, imagine a district court finds a judge, whether it's for speeding or for whatever else.

[00:35:54] Speaker 00:
Now, in some sense, it diminishes the judge's salary, right?

[00:35:57] Speaker 00:
Because now she has a smaller take-home paycheck.

[00:36:00] Speaker 00:
That is not a constitutional problem, because the judge is simply being treated like any other litigant.

[00:36:05] Speaker 00:
But if, conversely, if judicial counsel says, look, you're being too slow on your opinions, and so we're docking 10% of your salary, that is a constitutional.

[00:36:13] Speaker 06:
If they said you broke all the dishes in the cafeteria, you need to pay for them.

[00:36:18] Speaker 06:
They could do that.

[00:36:18] Speaker 00:
They could do that, but that's not so dark.

[00:36:20] Speaker 06:
I don't understand how that answers my question about if a district court prevents someone from coming into the courthouse, which is necessary to hear cases, then why a

[00:36:30] Speaker 06:
the council couldn't likewise impose sanctions that prevent someone from coming in the courthouse and have the indirect effect of preventing them from hearing case.

[00:36:39] Speaker 00:
But even when a district court does it, even the preventing from coming to the courthouse is itself indirect because the district court presumably would put a judge in jail.

[00:36:46] Speaker 00:
So it's not an order you can't come to the courthouse.

[00:36:48] Speaker 00:
So you have to sit in jail.

[00:36:52] Speaker 00:
I don't know if that, so if the district court issued an injunction preventing a judge from doing her job directly, that would also be a constitutional problem.

[00:36:58] Speaker 00:
But I think that would be a constitutional problem if you can, because if you need to be in the courthouse to do your job.

[00:37:03] Speaker 06:
They can only put you in.

[00:37:04] Speaker 06:
All right, it doesn't make a whole lot of sense to me that the Constitution's perfectly happy if they can't sit on cases because they're in a jail cell.

[00:37:12] Speaker 06:
But otherwise, any other thing that keeps them from coming into the courthouse to hear cases is not allowed.

[00:37:19] Speaker 00:
I think that's right.

[00:37:20] Speaker 06:
It doesn't make much sense to me.

[00:37:22] Speaker 00:
Well, if it were right, Judge Muller, then the impeachment provision in the Constitution that is meant to be a high bar essentially becomes unnecessary because judicial counsel can always withhold.

[00:37:36] Speaker 06:
I know you talk about this.

[00:37:37] Speaker 06:
So the impeachment standard is by crimes and misdemeanors.

[00:37:41] Speaker 06:
Article 3 protection is serving during good behavior.

[00:37:45] Speaker 06:
Are you equating good behavior

[00:37:48] Speaker 06:
with high crimes and misdemeanors, it seems to me that they're somewhat different in there.

[00:37:52] Speaker 06:
And that may very well be the area in which this council is operating.

[00:37:59] Speaker 00:
Whether or not they're the same, I think it's- Well, that's what you seem to, your argument assumes, right?

[00:38:04] Speaker 06:
The only thing that prevents you from hearing cases is impeachment.

[00:38:09] Speaker 00:
Correct.

[00:38:09] Speaker 00:
Removal.

[00:38:09] Speaker 06:
But that's not what Article III says.

[00:38:11] Speaker 06:
It says service during good behavior.

[00:38:13] Speaker 06:
Yes, but I think- Is good behavior the same or not?

[00:38:16] Speaker 00:
I haven't given it much thought, but I don't think it matters because whether or not good behavior is a higher, same or lower standard than high crimes and misdemeanors, the judgment as to whether or not somebody is on good behavior is with Congress and not with fellow judges.

[00:38:35] Speaker 06:
No, the Congress gives them an impeachment power and it doesn't say you decide if they're on good behavior.

[00:38:39] Speaker 06:
It says you decide if they've committed a high crime and misdemeanor.

[00:38:42] Speaker 06:
So that's why I think it may very well matter that these seem to be different standards.

[00:38:48] Speaker 06:
And so if it's good behavior, which, of course, committing a high crime in this meter would not be good behavior, that's easy.

[00:38:55] Speaker 06:
But if instead someone is critically ill, has had severe physical injuries from some kind of accident, and simply cannot move, is going in and out of consciousness for three months,

[00:39:13] Speaker 06:
That's not a high crime and misdemeanor, as Judge Pillard said, but their ability to serve during good behavior in their service might well be in question, at least during that time period while they're recovering.

[00:39:24] Speaker 00:
Yes, but presumably in that situation, the judge is not on the court.

[00:39:28] Speaker 00:
So judges, of course, like everybody else can take medical leave.

[00:39:31] Speaker 06:
That judge is not capable of making any decisions in my hypothetical.

[00:39:35] Speaker 06:
So they're not going to voluntarily do it.

[00:39:37] Speaker 06:
They're not in a position to make any legal or binding decisions.

[00:39:42] Speaker 06:
So the council itself will decide we are not giving that judge any cases during the recuperation period.

[00:39:53] Speaker 06:
We are not going to have them voting on on-bank matters during the recuperation period.

[00:40:00] Speaker 06:
That seems to me fully consistent with Article 3.

[00:40:03] Speaker 00:
I think it's only consistent.

[00:40:04] Speaker 06:
Fully consistent with what the statute allows, even though there'd be no reference for impeachment.

[00:40:09] Speaker 00:
But I think that in that case, the reason it's permissible is because the judge is simply not there to do the work, right?

[00:40:18] Speaker 00:
So in your hypothetical, the judge is going in and out of consciousness.

[00:40:20] Speaker 00:
Presumably, they're not shut up at the courthouse.

[00:40:23] Speaker 00:
If I could go back to your prior question.

[00:40:27] Speaker 05:
In exploring the apparent gap between service during good behavior and high crimes and misdemeanors, you said at one point that would be for Congress to judge.

[00:40:38] Speaker 05:
And I wasn't sure whether suing back and forth seemed to take that to mean in serving articles of impeachment.

[00:40:47] Speaker 05:
But when you first said that, I thought you meant

[00:40:49] Speaker 05:
for Congress to judge in legislating, for example, enacting 332 or the different authorities that are given.

[00:40:57] Speaker 00:
In the Articles of Impeachment.

[00:40:59] Speaker 00:
Pardon?

[00:40:59] Speaker 00:
Through the Articles of Impeachment, not Congress.

[00:41:01] Speaker 00:
The Articles of Impeachment.

[00:41:02] Speaker 05:
Yes.

[00:41:02] Speaker 05:
So is it not the case that

[00:41:06] Speaker 05:
Congress has any role in ensuring good behavior by legislating?

[00:41:12] Speaker 05:
And I know you disagree with this.

[00:41:14] Speaker 05:
I gather you disagree with this.

[00:41:16] Speaker 05:
My special question is, do you disagree that there is an apparent delta between conduct that refrains from committing high crimes and misdemeanors and conduct that constitutes good behavior?

[00:41:32] Speaker 05:
That is identical.

[00:41:34] Speaker 00:
Yes.

[00:41:34] Speaker 00:
I do disagree there's a doubt that's simply based on historical standards.

[00:41:38] Speaker 00:
So Congress has never thought that there is such a doubt.

[00:41:41] Speaker 05:
Well, Congress did enact various authorities.

[00:41:46] Speaker 05:
And we've held them to allow certain discipline of judges.

[00:41:51] Speaker 05:
And Congress hasn't amended those authorities for the judicial council to supervise and to some extent discipline judges.

[00:42:03] Speaker 05:
Somebody thinks that there's a Delta, or tell me why that's.

[00:42:07] Speaker 00:
No, so I think I disagree.

[00:42:09] Speaker 00:
And I disagree for the following reason.

[00:42:11] Speaker 00:
the judges get to hold office during good behavior.

[00:42:15] Speaker 00:
Holding office, as I've said before, includes determining judicially questions submitted.

[00:42:21] Speaker 00:
That doesn't mean that judges don't get reprimanded.

[00:42:23] Speaker 00:
It doesn't mean that judges don't get assigned, not assigned in some cases, but not others.

[00:42:31] Speaker 00:
But good behavior protects the holding of the office portion.

[00:42:36] Speaker 00:
And Congress, the only way to,

[00:42:41] Speaker 00:
stop judge from holding office i.e.

[00:42:44] Speaker 00:
from deciding judicially questions submitted is through impeachment if it were otherwise it would then mean that not congress can delegate this role not just judicial council congress can delegate this role to do your theory leaves no room at all i mean this is a statute not just about misconduct but about disability

[00:43:05] Speaker 06:
And if you do the impeachment process, you're out.

[00:43:09] Speaker 06:
There's no temporary impeachment.

[00:43:12] Speaker 06:
You are, in fact, convicted of a crime.

[00:43:16] Speaker 06:
You're going to lose any pension you might have, any benefits.

[00:43:21] Speaker 06:
You lose everything.

[00:43:23] Speaker 06:
And the notion that Congress would say, well, if someone has a disability, so they can't function for six months or a year, we're going to declare them a criminal and destroy their entire position, take it away, never to be returned, including all benefits and emoluments with it.

[00:43:42] Speaker 06:
That somehow the Constitution

[00:43:45] Speaker 06:
force that choice seems to me an extraordinary proposition.

[00:43:50] Speaker 06:
And in fact, the standards are different for impeachment and good behavior.

[00:43:55] Speaker 06:
And that's the very reason there has to be room for some temporary suspensions that keep the person in their office, that don't take away their ability for retirement benefits or health care benefits

[00:44:11] Speaker 06:
while they're recovering.

[00:44:12] Speaker 06:
I don't understand why, I mean, if your position means that someone who is physically disabled for six months has to either be given cases to decide or impeached, that suggests to me there's something wrong with your position.

[00:44:30] Speaker 00:
I think my position is that if somebody is disabled for six months, somebody undergoing medical treatment and

[00:44:37] Speaker 06:
And they can't decide because you're going in and out of the subconscious.

[00:44:40] Speaker 06:
No one would let them sign a contract at that point, let alone say, please take me off the cases.

[00:44:45] Speaker 00:
But they're also then in that hypothetical, they're not in a courthouse.

[00:44:47] Speaker 00:
But to just pull our points.

[00:44:49] Speaker 06:
I would agree.

[00:44:49] Speaker 06:
No, what?

[00:44:50] Speaker 06:
They're not in a courthouse.

[00:44:51] Speaker 00:
Of course they're not in a courthouse.

[00:44:53] Speaker 00:
They're not shown up for work.

[00:44:54] Speaker 00:
So of course court can not assign cases to somebody who is not shown up for work.

[00:44:58] Speaker 06:
What?

[00:44:58] Speaker 06:
Why?

[00:44:59] Speaker 06:
If someone doesn't show up for work, that should be a good reason for impeachment.

[00:45:02] Speaker 00:
Well, no, because they, well, yes.

[00:45:03] Speaker 00:
And actually that has been, there have been two cases.

[00:45:06] Speaker 06:
They don't show up for work.

[00:45:08] Speaker 06:
The council still can't do anything.

[00:45:09] Speaker 06:
They have to be impeached.

[00:45:11] Speaker 00:
No, the council.

[00:45:11] Speaker 06:
They don't show up for work because they're in the hospital.

[00:45:13] Speaker 00:
No, I think it goes through this idea that I think you just know if you asked before, or actually we just lost question.

[00:45:18] Speaker 00:
What happens if you're a backlog?

[00:45:21] Speaker 06:
I'm not asking about backlogs.

[00:45:23] Speaker 06:
What I am asking about is my scenario.

[00:45:26] Speaker 06:
And the reason they aren't showing up for work

[00:45:28] Speaker 06:
is they're in the hospital going in and out of consciousness.

[00:45:33] Speaker 06:
And your answer is, wow, let's impeach them.

[00:45:36] Speaker 00:
No, I think my answer is it's consistent with our position that a voluntary agreement, so for example, a case that- There's no voluntary agreement because they're not capable of entering into a voluntary agreement.

[00:45:48] Speaker 06:
That's why I gave you that hypothetical.

[00:45:49] Speaker 06:
So you have no voluntary agreement as an out.

[00:45:53] Speaker 06:
And so you've got, under your scenario, there's two options here.

[00:45:58] Speaker 06:
I know I give them cases or we impeach them.

[00:46:01] Speaker 00:
I understand that there's no explicit voluntary agreement in your hypothetical.

[00:46:04] Speaker 00:
My point is consistent with that idea that if you're not there because you're sick or because you're going through treatment or because of whatever other reason or because you maybe had to take time off to attend to family emergency, it is fully consistent with the idea that, of course, when you're not in a courthouse, when you're not doing the work, no new case get assigned to you.

[00:46:20] Speaker 00:
But when you are there, when you are able to do this, when you are willing to do it to withdraw from you as a punishment, the way that happens is

[00:46:28] Speaker 06:
Barring my hypothetical where they are not able to communicate or make legal decisions, if someone's going through a family matter, you know what you do.

[00:46:35] Speaker 06:
You go talk to your chief judge and say, I need to hold.

[00:46:38] Speaker 06:
That would be your voluntary situation.

[00:46:40] Speaker 06:
But that's very different from my hypothetical.

[00:46:44] Speaker 06:
And I still haven't heard an answer under your vision of how the Constitution works as to why the only answer to that is keep assigning cases

[00:46:55] Speaker 06:
to the person who's going in and out of consciousness for six months or impeach them.

[00:47:01] Speaker 06:
What is your third option for that one when there's no voluntary agreement?

[00:47:05] Speaker 00:
So my third option is simple.

[00:47:07] Speaker 00:
I have to refer back to what I said before that if the judge is not in the courthouse, if the judge is not actually doing work for whatever reason, you can stop us not in case.

[00:47:15] Speaker 05:
I have a harder hypothetical and I will at some point let you sit down and hear from opposing counsel.

[00:47:23] Speaker 05:
But this is

[00:47:25] Speaker 05:
sadly informed by a situation with an elderly relative who became paranoid and aggressive.

[00:47:34] Speaker 05:
And this person was not a lawyer or a judge, but I could see such an individual coming to the courthouse and being very belligerent and insisting on hearing cases and, in fact, having the sense that people who were trying to help her were

[00:47:55] Speaker 05:
you know, out to get her and that she would lash out.

[00:48:00] Speaker 05:
I mean, that happened to my relative who broke up the relationship that she was in just when she needed it for caring for her and alienated everyone.

[00:48:11] Speaker 05:
So you come into the courthouse, you insist on doing your work, you yell at parties, you yell at counsel, you are there.

[00:48:21] Speaker 05:
And the court, does nobody in the system

[00:48:26] Speaker 05:
Is it a high crime or misdemeanor?

[00:48:27] Speaker 05:
It's certainly not good behavior.

[00:48:29] Speaker 05:
Is there nobody in the system who can take steps against a conscious, belligerent person whose judgment is clearly in trouble?

[00:48:44] Speaker 05:
And again, I am not suggesting that this is the case.

[00:48:48] Speaker 05:
But for us, the ruling that we make could have effects on others.

[00:48:54] Speaker 00:
I appreciate that question just for us.

[00:48:56] Speaker 00:
And in some sense, it actually goes back to what I wanted to return in your prior question about what if a judge had a stroke or whatever.

[00:49:04] Speaker 00:
Because police do cite a similar case.

[00:49:08] Speaker 00:
And we responded to it in our response brief.

[00:49:12] Speaker 00:
There was a similar situation like that on the seventh stroke, I think, in the Northern District of Illinois, where a judge did have a stroke, did not fully regain his executive function, which one would think is somewhat problematic for a judge sitting on the bench not having full executive function.

[00:49:26] Speaker 00:
And yet, nobody thought that they could fully divest him of his judicial authority.

[00:49:29] Speaker 00:
Then Chief Judge Easterbrook simply chose not to assign him criminal cases, I guess on the theory that more is at stake in a criminal case than in a civil case.

[00:49:37] Speaker 00:
But that judge continued to sit on civil cases.

[00:49:41] Speaker 00:
And so I think that just shows.

[00:49:44] Speaker 05:
You haven't answered my question.

[00:49:46] Speaker 00:
I'm going to be right.

[00:49:47] Speaker 05:
It's much harder, I have to say.

[00:49:48] Speaker 05:
I recognize it's very difficult.

[00:49:50] Speaker 00:
Right.

[00:49:51] Speaker 00:
But I think it goes to, and I was getting to the answer.

[00:49:54] Speaker 00:
I think that in those situations when a judge is belligerent, when a judge is, the answer is you could potentially reduce the caseload to alleviate the pressure, but you can't completely withdraw it.

[00:50:05] Speaker 00:
And if it really is a problem, if it really is that bad,

[00:50:09] Speaker 00:
impeachment.

[00:50:10] Speaker 00:
Ultimately, I think I have to fall back on the Constitution and our founders contemplated this very scenario.

[00:50:17] Speaker 00:
They thought about it.

[00:50:18] Speaker 00:
Alexander Hamilton wrote because he said that, look, some states have actually taken a different route.

[00:50:24] Speaker 00:
So for example, at that time in New York, you had to retire at age 65 precisely because people were worried.

[00:50:28] Speaker 00:
And Hamilton writes that we are purposefully not doing that.

[00:50:32] Speaker 00:
And the upshot, if the answer is that somebody could, outside of impeachment process, take care of it, then there's no specific constitutional reason why it has to be assigned to judicial counsel, as opposed to, for example, Department of Justice or the White House.

[00:50:47] Speaker 00:
There's no specific, if you can essentially debar judge from hearing cases, short of impeachment, on a temporary basis, there's no specific constitutional prohibition that says, well, it has to be done by fellow judges.

[00:51:02] Speaker 05:
There seems to be serious separation of powers concerns with having another branch.

[00:51:09] Speaker 00:
You respond.

[00:51:12] Speaker 00:
Well, I think that those concerns are equally present when it's the same branches doing it, because the concept of judicial independence is not merely independence from other branches.

[00:51:20] Speaker 00:
And the Supreme Court said it's also in dependence of each individual judge.

[00:51:23] Speaker 01:
This is a big debate in Chandler and the dissents in some of our cases.

[00:51:28] Speaker 01:
Does any of your historical evidence that you've referred to actually show they considered the possibility of intra-branch discipline?

[00:51:36] Speaker 01:
I'm sorry, could you repeat the question?

[00:51:39] Speaker 01:
The Hamilton and other evidence from the founding, does any of it actually speak to intra-branch discipline as opposed to inter-branch discipline, which obviously raises more of the types of separation of powers?

[00:51:51] Speaker 00:
It doesn't speak specifically on intra-branch, but Hamilton's basically says we do not need any additional mechanism.

[00:51:58] Speaker 00:
But if it is not a problem to do it intra-branch, then the other problem follows.

[00:52:04] Speaker 00:
That would mean that because there is no danger

[00:52:07] Speaker 00:
of judges being no danger to judicial independence from fellow judges.

[00:52:12] Speaker 00:
It would follow that, for example, an appellate judge could call a district judge and say, look, I need you to decide a case this way.

[00:52:19] Speaker 00:
And it would not be a problem because it's intra-branch.

[00:52:22] Speaker 00:
And that simply cannot be right.

[00:52:24] Speaker 00:
So I take your point.

[00:52:25] Speaker 00:
Of course, it's an even more danger if you assign this determination to the White House as opposed to intra-branch.

[00:52:31] Speaker 00:
But I don't think it's really different in kind.

[00:52:33] Speaker 00:
It's perhaps different in degree.

[00:52:36] Speaker 06:
I just want to get back.

[00:52:37] Speaker 06:
You started with a list of, sorry, that you said their only option is impeachment.

[00:52:46] Speaker 06:
But then you said impeachment or voluntary suspension, right?

[00:52:51] Speaker 06:
You've agreed with that if they voluntarily need a suspension.

[00:52:54] Speaker 06:
Yes.

[00:52:54] Speaker 06:
And then you said impeachment, voluntary suspension, and they can't get into the courthouse.

[00:52:59] Speaker 00:
I think that's you just you added that.

[00:53:02] Speaker 06:
I don't understand the answer, but that's what you added.

[00:53:04] Speaker 00:
Well, I've added that you can't get as a secondary thing.

[00:53:07] Speaker 00:
If they're sitting in jail, they as a result of my hypothetical was in jail.

[00:53:11] Speaker 06:
So I added I gave you a hypothetical.

[00:53:13] Speaker 06:
They couldn't.

[00:53:13] Speaker 06:
Your answer was repeatedly that the person in the hospital can't get into the courthouse so you can suspend their work.

[00:53:19] Speaker 06:
Is that correct?

[00:53:19] Speaker 06:
Yes.

[00:53:20] Speaker 06:
OK, so you've got three things now.

[00:53:22] Speaker 06:
Chandler said that you can suspend it for being behind.

[00:53:26] Speaker 06:
in a backlog of cases.

[00:53:28] Speaker 06:
Chandler said that.

[00:53:29] Speaker 06:
We're bound by that.

[00:53:30] Speaker 00:
Well, I don't think Chandler quite said that.

[00:53:32] Speaker 00:
I think Chandler ultimately was decided on jurisdictional issue because the force had mandated it.

[00:53:36] Speaker 06:
They said it would be perfectly fine.

[00:53:38] Speaker 06:
That would be fair and made sense to be able to address a backlog that way.

[00:53:41] Speaker 06:
Now, you can say it was just dicta.

[00:53:44] Speaker 06:
But I'm not going to say they were just kidding when they said it.

[00:53:46] Speaker 06:
I feel like we're bound by it.

[00:53:47] Speaker 06:
So we've got those four things.

[00:53:48] Speaker 00:
But I think you have to look at the procedural posture of Chandler.

[00:53:53] Speaker 00:
So first, Judge Chandler actually agreed

[00:53:56] Speaker 00:
case reassignment.

[00:53:57] Speaker 06:
I'm telling you what the Supreme Court said, their words.

[00:54:00] Speaker 06:
That's what it seems, that's what I'm telling you, right?

[00:54:03] Speaker 06:
They said, you agree they said that.

[00:54:05] Speaker 00:
They did, but again, so I think part of, and I think actually it could have been an opinion by Justice Harlan as a concurrence and not the majority.

[00:54:12] Speaker 00:
The majority ultimately did it on the mandamus saying that there's no disputable right.

[00:54:16] Speaker 06:
I understand that, but you think they didn't mean it then?

[00:54:17] Speaker 06:
We don't have to take it seriously?

[00:54:19] Speaker 00:
No, no, I don't think majority endorsed the idea that you can, without judge's consent, simply take away his function.

[00:54:25] Speaker 00:
Majority said that on a

[00:54:28] Speaker 00:
on that case and the facts of that case when Judge Chandler repeatedly agreed with a judicial counsel on case reassignment.

[00:54:34] Speaker 06:
Many courts, including federal courts, have informal unpublished rules, which, for example, there's other ones, provide that when a judge has been given a number of cases under submission, he will not be assigned more cases until opinions and orders to issue on his backlog.

[00:54:49] Speaker 06:
These are reasonable, proper, and necessary rules, and the need for enforcement cannot reasonably be doubted.

[00:54:55] Speaker 06:
And you're saying,

[00:54:57] Speaker 06:
We should pay no attention to that.

[00:54:58] Speaker 00:
No, I'm not saying that.

[00:54:59] Speaker 00:
And in fact, Federal Circuit has that rule as well.

[00:55:01] Speaker 00:
And we're not challenged.

[00:55:01] Speaker 06:
So that's a fourth exception.

[00:55:03] Speaker 00:
No, I don't think it's an exception.

[00:55:04] Speaker 00:
Because in those cases, I think we started the conversation with Judge Pollard a while ago.

[00:55:09] Speaker 00:
Because in that case, you're not suspended from determining judicially questions submitted.

[00:55:13] Speaker 00:
You still have cases you're working on.

[00:55:15] Speaker 00:
You still have opinions.

[00:55:16] Speaker 06:
They can suspend new assignments.

[00:55:17] Speaker 00:
They can suspend new assignments.

[00:55:19] Speaker 00:
And I think that goes to Judge Garcia's very first question about how to distinguish McBride.

[00:55:24] Speaker 00:
And the point is that, or how to construe the statute.

[00:55:27] Speaker 00:
If all the statute allows you to do is to essentially suspend new cases while you still have other judicial work, that's fine, because you're still holding office, because you're still exercising judicial powers of the United States.

[00:55:38] Speaker 00:
But if you have no work to do, as Judge Newman has not had it for almost two years, not petitions.

[00:55:44] Speaker 06:
So if they allowed one case a year, you'd have no objection?

[00:55:48] Speaker 00:
I think it would be a harder constitutional question.

[00:55:49] Speaker 06:
I want to know your answer if it was allowed one case a year.

[00:55:53] Speaker 00:
I think, like I said, it would be hard to answer your question.

[00:55:55] Speaker 00:
I would have to think harder about it because, again, ultimately, it's substance, not shadows.

[00:56:05] Speaker 00:
But so long as she has some judicial work to do, then she has not been functionally removed from office.

[00:56:13] Speaker 06:
So one case a year would not be a function.

[00:56:14] Speaker 00:
I would have to know how long that case would take.

[00:56:16] Speaker 00:
She has some judicial work to do.

[00:56:18] Speaker 00:
It can't be just like she does work for three days and no work for 362 days.

[00:56:24] Speaker 00:
But I think that as long as a judge has judicial function.

[00:56:30] Speaker 06:
Article III requires some volume of work.

[00:56:35] Speaker 00:
Article 3 requires the judge be able to exercise.

[00:56:38] Speaker 00:
Yes, I understand that.

[00:56:39] Speaker 06:
You're saying exercise judicial power.

[00:56:42] Speaker 06:
And it sounds like you want to say, well, more than one case a year.

[00:56:47] Speaker 00:
But somehow we're supposed to just... No, so I think it's a... I agree that it's very hard to draw a line, but wherever the court draws that line,

[00:56:57] Speaker 00:
We're way past that.

[00:56:58] Speaker 00:
So whether one case a year is enough, or whether it has to be like once every month, or similar to what other judges in active status really do, and whatever that line is drawn, at the very least, Judge Newman has to exercise the powers that the very commission that's hanging on her wall, and very commission in which that police rely, invest in her.

[00:57:16] Speaker 00:
And thus far, since at least November of 2023, she's had not only no cases, not only no petitions, she has even been removed from the court list that allows her to see pre publication opinions of her colleagues.

[00:57:30] Speaker 00:
She's doing absolutely no work

[00:57:32] Speaker 00:
whatsoever.

[00:57:33] Speaker 00:
In fact, the police, in one of their orders, say it is a defense of the argument that Judge Newman has not been functionally removed, that she has been invited for ice cream socials, and she gets occasional emails about patches to the IT system.

[00:57:47] Speaker 00:
That cannot be what the Constitution envisions an Article 3 power to be.

[00:57:53] Speaker 06:
Any questions?

[00:57:54] Speaker 06:
Thank you.

[00:57:54] Speaker 06:
OK, thank you very much.

[00:57:55] Speaker 06:
We'll move now from Jessica.

[00:58:09] Speaker 02:
May it please the court, Melissa Patterson on behalf of the Federal Circuit Judicial Council.

[00:58:15] Speaker 03:
And I would like to start this morning by making clear that no one in these proceedings is disputing Judge Newman's many contributions to the law generally or the Federal Circuit specifically for decades before the concerns arose that resulted in the Judicial Council order that's issued today.

[00:58:36] Speaker 03:
That order was issued under the Judicial Conduct and Disability Act, whose review provisions this court has previously addressed in McBride.

[00:58:44] Speaker 03:
And in McBride, the court held that if you want to go to district court and bring a challenge to the type of judicial council order at issue here, there's only one type of challenge you can bring, and that is a facial challenge to the act itself.

[00:59:02] Speaker 03:
For all other complaints, whether they are about statutory matters or as-applied constitutional challenges, you have to use the review mechanism that Congress created and crafted in the act.

[00:59:17] Speaker 03:
And that is a petition to the United States Judicial Conference.

[00:59:21] Speaker 06:
The problem, as you know, is the Judicial Conference has said, we can't hear as-applied claims.

[00:59:28] Speaker 06:
And this court said,

[00:59:30] Speaker 06:
We can't hear as applied claims because they need to decide the as applied claims.

[00:59:35] Speaker 06:
And so the combination of McBride and the position of the Judicial Conference has left us with a world in which there are constitutional claims that can't be heard anywhere.

[00:59:51] Speaker 06:
If that's what this statute creates, isn't that a constitutional problem in its own right?

[00:59:58] Speaker 03:
That is not the state of the world, Your Honor.

[01:00:00] Speaker 03:
The Judicial Conference can and does entertain as applied constitutional challenges since this court in McBride said it could.

[01:00:08] Speaker 06:
That's not what they said here.

[01:00:09] Speaker 06:
When they described what their standard of review was, what they would review, and it was not.

[01:00:16] Speaker 06:
It was not.

[01:00:18] Speaker 03:
I believe it's legal error.

[01:00:20] Speaker 03:
which of course includes constitutional challenges, clear air of facts, or abuse of discretion.

[01:00:25] Speaker 06:
Does that mean you're a dresser of the applied constitutional argument in this case?

[01:00:28] Speaker 03:
Absolutely, Your Honor.

[01:00:29] Speaker 03:
In February 2024, Judge Newman's petition to the Judicial Conference, which had been referred to the Judicial Conduct and Disability Act, which is composed of seven Article III judges from the 26th, 27th, who populate the Judicial Conference.

[01:00:46] Speaker 03:
And I refer the court to pages 14 through 21.

[01:00:51] Speaker 03:
So on page 14, the committee describes the challenges that it has before it.

[01:00:59] Speaker 03:
And it recounts that she says the judicial council's alleged, quote, violations of the Act, the rules, and the Fifth Amendment constitute good cause for her refusal to submit to medical testing, and that the sanction imposed by the judicial council

[01:01:16] Speaker 03:
The one-year suspension that's been under discussion this morning is contrary to the Constitution.

[01:01:22] Speaker 03:
It then goes on to reject those challenges on the merits.

[01:01:26] Speaker 01:
It says- It's not a great mention of the Constitution.

[01:01:30] Speaker 01:
It says all the process, she was due under the rules, not under the Fifth Amendment.

[01:01:35] Speaker 01:
There's at least some ambiguity about whether they thought they were resolving the arguments, the constitutional arguments they described.

[01:01:42] Speaker 03:
I think it's a it's quite an impossible reading of this opinion to take the view that what the Judicial Conference did was say we have before us a constitutional challenge for it to go on to analyze and to say quote Judge Newman was not denied due process to describe.

[01:02:00] Speaker 03:
the many processes afforded her under the rules to say, in fact, the judicial council here gave her more process that those rules decided.

[01:02:09] Speaker 03:
And then for the inference of all of that to be that the judicial conference, the article three judges there actually thought we are going to silently not address the due process challenge of the constitutional variety we referred to several pages before.

[01:02:26] Speaker 03:
and to leave that uncorrected, despite the fact that we are possessed of uncontested authority to change any of the sanctions that the Judicial Council ordered.

[01:02:35] Speaker 03:
Were there any doubt that the Judicial Conference Committee considers itself capable of resolving constitutional challenges?

[01:02:44] Speaker 03:
It did so in the Adams case.

[01:02:46] Speaker 03:
We cite this in our briefs.

[01:02:47] Speaker 03:
And I don't think there's any possible ambiguity in this statement, Judge Garcia.

[01:02:52] Speaker 03:
the Judicial Council order, quote, did not violate the Fourth Amendment regarding the mental health examination and orders.

[01:03:00] Speaker 06:
So I think it is- Where do they address the due process implications of not transferring?

[01:03:05] Speaker 06:
Pardon?

[01:03:05] Speaker 06:
Where do they address the due process implications of not transferring?

[01:03:09] Speaker 06:
They sort of go through recusal issues under statutes, but where do they say address the due process issue of having someone who

[01:03:18] Speaker 06:
has information about either actual or perception of bias or relevant information in the case.

[01:03:26] Speaker 06:
The literal argument is, you can't adjudicate my case if you are a witness, if you have firsthand knowledge, or if you have potential bias.

[01:03:39] Speaker 06:
Or even there could be an appearance of bias.

[01:03:45] Speaker 06:
Why is that?

[01:03:46] Speaker 06:
Where is that addressed?

[01:03:47] Speaker 03:
I would direct the court to pages 15 through 20 of the Judicial Council decision.

[01:03:52] Speaker 03:
This is the internal pagination for the committee decision itself.

[01:03:56] Speaker 03:
The court notes, Judge Newman concludes that recusal in this matter is both constitutionally and statutory required.

[01:04:04] Speaker 03:
For the reasons explained below, we conclude that neither the Chief Circuit Judge nor the Judicial Council abused their discretion by not requesting transfer.

[01:04:14] Speaker 03:
It then goes on to explain that in the system Congress has created, the sort of rules of 455 recusal do not apply.

[01:04:23] Speaker 03:
that the design Congress has created.

[01:04:26] Speaker 06:
They don't go on to then say, well, whatever the rule is that applies, that's not the same thing as saying, what does the Constitution require?

[01:04:35] Speaker 06:
And they don't go on.

[01:04:36] Speaker 06:
There's no constitutional cases.

[01:04:38] Speaker 06:
And here, there's no constitutional analysis.

[01:04:41] Speaker 06:
And we said at McBride, they've disavowed their ability to decide as applied constitutional claims.

[01:04:47] Speaker 03:
In McBride, of course,

[01:04:49] Speaker 03:
The court still refused to entertain the as-applied challenges, even when we were in a state of the world where it was uncontested that the Judicial Conference was not going to.

[01:04:58] Speaker 06:
You said the Judicial Conference has now changed its practice.

[01:05:00] Speaker 06:
Have they issued a new document that says we will decide as-applied constitutional challenges?

[01:05:05] Speaker 06:
Have they announced that they will decide it?

[01:05:07] Speaker 06:
I am unaware of any such document, but in their... You can't read these opinions and think they're actually deciding anything constitutional.

[01:05:13] Speaker 03:
I most certainly do, Your Honor.

[01:05:14] Speaker 03:
And were there any doubt, and I don't think there's a fair doubt, that the judges of the committee understood themselves to be resolving the challenges they described before them, I think the Adams decision, where there was an unambiguous rejection of a Fourth Amendment challenge,

[01:05:33] Speaker 03:
puts to rest any idea that the Judicial Conference is somehow disabling itself from hearing these claims.

[01:05:43] Speaker 01:
Is the JC&D committee or the Judicial Conference your client in this case?

[01:05:48] Speaker 03:
The Judicial Council.

[01:05:49] Speaker 03:
The Judicial Council is my client, yes.

[01:05:52] Speaker 01:
And so at least as to them, you're representing that they believe.

[01:05:56] Speaker 01:
And for example, if another challenge is raised, they're going to address whether this has amounted to an effective removal that violates the separation of powers.

[01:06:09] Speaker 03:
If the question is, do my judicial clients believe that they are adhering to the Constitution and applying this act, the answer is unambiguously yes.

[01:06:18] Speaker 01:
The simpler way is they believe they have the authority and they will resolve as applied challenges.

[01:06:23] Speaker 03:
Yes.

[01:06:23] Speaker 03:
And of course, the judicial conference can then review their evaluation of the situation they have before them.

[01:06:30] Speaker 06:
I do want to return.

[01:06:31] Speaker 06:
Do you also represent the conference?

[01:06:33] Speaker 03:
I do not.

[01:06:34] Speaker 03:
I represent the council.

[01:06:36] Speaker 03:
I do want to return to McBride because I think that the colloquy earlier about what may or may not constitute a facial challenge is something I'd like to weigh in on.

[01:06:48] Speaker 03:
All of the cases that Mr. Dolan is citing about narrowing constructions being appropriate in a facial challenge are First Amendment cases.

[01:06:58] Speaker 03:
And this court has, I think, in many a recent case, explained that over-breadth is limited to the First Amendment.

[01:07:06] Speaker 03:
And that's because, of course, if you leave an over-broad statute on the books that has both

[01:07:13] Speaker 03:
First Amendment compliant and First Amendment non-compliant applications, you can chill speech.

[01:07:19] Speaker 03:
And in that particular context, given the need to avoid chilling First Amendment activity, you can, even in a situation where there is no as applied challenge for whatever reason, take the face of the statute and cut it down.

[01:07:35] Speaker 03:
We do not have a First Amendment challenge here.

[01:07:37] Speaker 06:
I mean, are you saying there

[01:07:40] Speaker 06:
there can never be, you can never construe a statute to avoid a constitutional problem in a facial challenge outside the First Amendment?

[01:07:49] Speaker 03:
I don't think opposing counsel has pointed to any examples.

[01:07:52] Speaker 06:
I'm asking you whether, I don't understand why.

[01:07:55] Speaker 06:
I mean, you would have to find a substantial facial constitutional challenge and you'd have to find ambiguity that could be interpreted to avoid that problem.

[01:08:06] Speaker 06:
I don't understand why courts duties to

[01:08:09] Speaker 06:
avoid constitutional rulings when possible wouldn't apply equally to facial challenges outside the First Amendment.

[01:08:17] Speaker 03:
In Salerno, when what you are doing is changing Congress's handiwork, not just saying it's been applied unconstitutionally in this circumstance.

[01:08:27] Speaker 03:
Everyone agrees that in the normal course, that's how you would get at that problem.

[01:08:32] Speaker 03:
But when you are actually altering legislative enactments

[01:08:36] Speaker 03:
The only time it's appropriate to do that is the no set of circumstances in which Congress's actual words could ever be applied constitutionally.

[01:08:45] Speaker 06:
I'm just asking a question.

[01:08:46] Speaker 06:
If you're sitting there scratching your head, there have been statutes where we are really struggling to figure out a single example to be constitutional.

[01:08:58] Speaker 06:
But if we read this word to mean x rather than y, we could do that.

[01:09:03] Speaker 06:
And your position is that's not available.

[01:09:06] Speaker 06:
I don't know that I have a position on that, Your Honor, because... Well, you were just saying that you were saying, you know, pushing off his constitutional avoidance argument, saying that's just a First Amendment argument, and that's what I'm pushing back on.

[01:09:16] Speaker 03:
I'm articulating the Salerno standard, which is the standard... I'm aware of the Salerno standard.

[01:09:20] Speaker 06:
I'm saying you could be in a case applying the Salerno standard and have a substantial constitutional question in front of you under that standard that could be avoided by construing language in the statute.

[01:09:32] Speaker 03:
I'm having trouble reconciling that with the facial nature, and here's why.

[01:09:37] Speaker 03:
If what you are doing is narrowing an act, you're issuing a narrowing construction, by definition, that means there are many constitutional applications of the statute.

[01:09:48] Speaker 06:
Now, only if you read the statute language as having that narrowing meaning, but without that narrowed meaning, you wouldn't be able to think of a situation where it would be constitutional.

[01:09:59] Speaker 03:
Your Honor, I don't want to quarrel with this court's authority to read statutes in the way it seems.

[01:10:04] Speaker 06:
The easy answer question here is whether they've raised that type of substantial question.

[01:10:09] Speaker 03:
I think it's clear, and I think it was clear from the opening minutes of Mr. Dolan's presentation where he referred to the council here functionally affecting removal, that this was a statutory violation of the temporary requirement in 354A2A1.

[01:10:27] Speaker 03:
and that quote, these proceedings violated due process, that we do not have a true facial challenge before this court.

[01:10:35] Speaker 03:
What we have are precisely the type of as applied challenges that Judge McBride tried to bring and that this court said had to be challenged to the judicial conference.

[01:10:47] Speaker 03:
The judicial conference can address Judge Newman's claims if she believes that the judicial council has exceeded the boundaries of the statute

[01:10:56] Speaker 03:
It can address her chain claims if Judge Neumann considers the application of these statutes, which are valid on their face, to have straight outside the bounds of the Constitution.

[01:11:08] Speaker 03:
But under this court's binding precedent, that is a question for the Judicial Conference, not a district court.

[01:11:18] Speaker 01:
One way of putting this, that when you look at 2A1, everyone seems to agree that you can understand what it means in a lot of applications, and that a lot of those applications are totally constitutional.

[01:11:30] Speaker 01:
And if we start from that point, do you think that we even have to interpret what the outer bounds of the statute are?

[01:11:39] Speaker 01:
Or is your point that no, everything I just said is enough to resolve what we've always regarded as a facial challenge?

[01:11:47] Speaker 03:
That, Your Honor, yes.

[01:11:49] Speaker 03:
As soon as you have the undoubted applications of the statute in 354A2A1, that's all this court would need to resolve.

[01:12:00] Speaker 03:
And so I do want to note that I think some of the discussion, most of the discussion earlier, hinged on the idea that you were not deciding any cases.

[01:12:09] Speaker 03:
Of course, for the first few months of the suspension, the one-year suspension,

[01:12:13] Speaker 03:
Judge Newman continued to hear cases because she had a backlog that she was working through.

[01:12:18] Speaker 03:
And the suspension was only of new cases.

[01:12:21] Speaker 03:
So even on her own theory, this very suspension would have been constitutional between September and November of 2023.

[01:12:29] Speaker 03:
And it was only at that point when Judge Newman cleared her backlog that this very suspension would have crossed their line from constitutional into unconstitutional.

[01:12:40] Speaker 03:
So I think that's enough to show that there are not only many, many, many theoretical applications of the statute that are constitutional, but even on their own theory, this one was for some period of time.

[01:12:53] Speaker 01:
Can I ask a few questions about McBride?

[01:12:55] Speaker 01:
You might be right that we are bound by its jurisdictional holdings, but it seems like an outlier in several respects.

[01:13:02] Speaker 01:
And I think maybe one of them is, are you aware of any other statute a court has interpreted to bar as applied constitutional challenges, but not facial challenges?

[01:13:14] Speaker 03:
I'm not, Your Honor, but I think that this may be an outlier because the scheme is an outlier.

[01:13:19] Speaker 03:
Of course, the actual language of 357C does not have a sort of a bifurcation.

[01:13:25] Speaker 03:
And you're right that usually there's a high bar to saying to courts acknowledging that Congress actually means that and that they will read in an implicit exception as applied constitutional challenges.

[01:13:37] Speaker 03:
But McBride went very carefully through and acknowledged that high bar, said, yeah, we have to have clear and convincing evidence that this is what Congress meant and that it's OK.

[01:13:48] Speaker 03:
And the McBride court did that work.

[01:13:51] Speaker 03:
It explained, we have a singular context here of the sensitive business of looking into Article 3 judge misconduct or disability.

[01:14:00] Speaker 03:
And we want to give that to Article 3 judges, but in order to protect judicial independence,

[01:14:07] Speaker 03:
We want to keep it out of the adversarial proceedings that if we put this into an Article 3 court, instead of just in front of Article 3 judges, who of course have all the life tenure and independence, and there's no reason to think that they would scant the right of their members of their own judiciary, in this context,

[01:14:28] Speaker 03:
where Congress has created a route to Article 3 judges, we think it is OK to read the language of 357C to mean what it says.

[01:14:38] Speaker 03:
We don't see a question that there is a meaningful difference between having as applied challenges of this variety in this context reviewed by Article 3 judges of the Judicial Conference versus Article 3 judges of a district court or a court of appeals.

[01:14:56] Speaker 01:
Concerning outcome here, this is maybe related to one thing Judge Millett asked about, is that you could have an extremely profound as applied constitutional challenge.

[01:15:05] Speaker 01:
And sure, a body composed of Article III judges would be able to consider it.

[01:15:09] Speaker 01:
But as I understand your reading of McBride, the Supreme Court would not be the last word on that question.

[01:15:17] Speaker 01:
Say there really was a judicial order that amounted to what everyone agrees is removal.

[01:15:23] Speaker 01:
The Supreme Court wouldn't get to weigh in on that.

[01:15:25] Speaker 03:
I assume by everyone you mean everyone but the 26 Article III judges of the Judicial Conference.

[01:15:30] Speaker 01:
And the Supreme Court would not be the last word on a profound question of constitutional law.

[01:15:35] Speaker 03:
I think that is the result under this Court's precedent holding that exercises of counsel power are administrative and therefore, I think, under the question the Court left open in Chandler not subject to Supreme Court review by mandamus.

[01:15:51] Speaker 03:
I know per the footnote in our brief,

[01:15:53] Speaker 03:
we have reserved that that is an open question.

[01:15:56] Speaker 03:
If you considered the type of power being exercised by a counsel in the conference to be judicial, I think the Supreme Court would have the ultimate supervisory power over that.

[01:16:07] Speaker 03:
So we take this court's precedent.

[01:16:10] Speaker 03:
I believe so, Your Honor, although I haven't investigated the mechanisms.

[01:16:13] Speaker 03:
And in part, that's because we've taken this court's precedent

[01:16:16] Speaker 03:
that it is a form of administrative power as a given.

[01:16:20] Speaker 06:
But in McBride, this court fully embraced the administrative power to violate constitutional rights and not be challenged.

[01:16:31] Speaker 06:
I'm not sure I understand the question.

[01:16:32] Speaker 06:
I mean, the fact that it's interesting, whether it's administrative, considered administrative or judicial, you have a proceeding here that the theory seems to be that they that they can address as applied constitutional arguments.

[01:16:47] Speaker 06:
They don't seem to be doing it, but even assuming they could and Supreme Court can never review it.

[01:16:55] Speaker 03:
I think that is the, if you consider them to be administrative.

[01:17:00] Speaker 06:
Your answer seemed to suggest that because it was administrative, it made sense not to allow a judicial court review or Supreme Court review of constitutional claims in a way that we would never say if it were a judicial body.

[01:17:17] Speaker 03:
To be clear, I think it makes sense whether or not you consider this administrative or judicial power.

[01:17:22] Speaker 03:
What I am saying is that in Chandler there was a big fight and there was the Harlan dissent about whether or not the court had jurisdiction to review the judicial council order.

[01:17:31] Speaker 03:
It was a 332 order because it predated the act.

[01:17:34] Speaker 03:
The court leaves that unresolved.

[01:17:37] Speaker 03:
And Justice Harlan explains that he thinks it should be judicial.

[01:17:40] Speaker 03:
And by his lights, he thinks that means the Supreme Court can issue mandamus.

[01:17:44] Speaker 03:
My only point is that to the extent that Judge Garcia is concerned about the lack of Supreme Court review,

[01:17:52] Speaker 03:
I think that is a function of the way this court has described the nature of authority issued.

[01:17:57] Speaker 03:
But let's assume this court is correct about that.

[01:18:00] Speaker 03:
I think Congress is entitled to vest this type of dispute, this type of constitutional dispute about Article III judge misconduct and disability in a body of Article III judges who are not sitting as a court.

[01:18:17] Speaker 03:
I don't think there's a constitutional problem with doing that.

[01:18:21] Speaker 03:
I do want to- Without any review.

[01:18:23] Speaker 06:
And I'm curious as to why mandamus would be sufficient.

[01:18:26] Speaker 06:
Then the Supreme Court would only be able to correct clear and indisputable constitutional violations, not other ones.

[01:18:35] Speaker 03:
I know that there are, under our constitution, under different constitutional powers, there are things like the court marshals, courts marshal, which I believe until at least the mid 20th century, there was no Supreme Court review

[01:18:51] Speaker 03:
over a final court-martial judgment.

[01:18:53] Speaker 03:
So it is not unknown in our constitutional system.

[01:18:56] Speaker 06:
What history is there of decisions made by Article III judges, not military judges, and you're not in that unique military system, of the Supreme Court not being to review either at all or only for clear constitutional violations, those decisions?

[01:19:17] Speaker 06:
There's no tradition.

[01:19:18] Speaker 06:
There's no history.

[01:19:18] Speaker 06:
There's nothing special or unique about

[01:19:21] Speaker 06:
This process.

[01:19:22] Speaker 03:
I do think there is the way that military I think there are different things that are special and unique about this process.

[01:19:28] Speaker 03:
And I think some of them are about the weighty constitutional concerns that Congress was obliged or at least allowed to consider and setting up a mechanism.

[01:19:40] Speaker 03:
for something, as you were discussing earlier, in between a high crime and a misdemeanor and good behavior, for the judiciary to have some internal tools to manage judicial proceedings in a way that takes account of the public interest.

[01:19:56] Speaker 06:
And Congress, after- That's not inconsistent with then providing for judicial review of all.

[01:20:05] Speaker 06:
constitutional claims, unless the outcome of this is that Article 3 judges just don't have constitutional rights that everyone else does upon their removal.

[01:20:19] Speaker 03:
Your Honor, these all sound like essentially reasons that McBride was wrongly decided, not reasons that McBride doesn't apply here.

[01:20:30] Speaker 03:
Now I think that McBride does a good job explaining why in this context, Congress was allowed to make the choices it did.

[01:20:37] Speaker 06:
Well, McBride said the conference can decide the as-applied challenges.

[01:20:42] Speaker 06:
And if we look at the conference decision here and think that they didn't address the as-applied challenges, did not deal with the repeated and extended nature of this debarment from acting as a judge,

[01:21:00] Speaker 06:
didn't deal with the due process issues of having fellow judges, fact witnesses, people who have relationships with you as your adjudicators.

[01:21:12] Speaker 06:
What did we do?

[01:21:13] Speaker 03:
Exactly what this court did in McBride and dismissed the as-applied challenges.

[01:21:17] Speaker 03:
Again, McBride did not say, we will consider as-applied challenges if the judicial conference is not going to.

[01:21:23] Speaker 03:
McBride said the opposite.

[01:21:25] Speaker 03:
We will not consider these as applied challenges, even though the Judicial Conference at that point refused.

[01:21:29] Speaker 06:
I think they were sort of thrown out on the assumption that the Judicial Conference then might change its approach.

[01:21:35] Speaker 06:
Which it did, Your Honor, and I don't think- You can't point at anything that says it does, other than you found one case where they said something about the Fourth Amendment, but they haven't done it in this case.

[01:21:42] Speaker 06:
disagree your honor if we read it is that they have not addressed those claims in this case then we would still be on all fours with mcbride i do want to there was something i know i'm telling you if i read mcbride as saying sort of going forward this is how as applied claims can be dealt with and then it turns out they're not being dealt with so that's not that was not the world in which mcbride mcbride was like

[01:22:04] Speaker 06:
They don't seem to do so now, but we're telling them that's where it should be.

[01:22:08] Speaker 06:
Let's see what happens.

[01:22:09] Speaker 06:
They were not at this where they have looked at these claims and refused to decide them.

[01:22:14] Speaker 06:
So we are not in the McBride box in that context.

[01:22:18] Speaker 06:
I'm asking you what we're supposed to do.

[01:22:22] Speaker 03:
Anything?

[01:22:24] Speaker 03:
I think you dismissed the as-applied claims as McBride did.

[01:22:27] Speaker 03:
I don't think there's any suggestion or opinion that they're holding it open or retaining jurisdiction.

[01:22:30] Speaker 06:
Then we are creating a statutory scheme here in which

[01:22:34] Speaker 06:
a body constitutional claims, and if there are ones that were to conclude would be plausible ones here, are not to be heard at all, are we not engaging in the constitutional conduct or reading the statutory scheme to create a constitutional problem?

[01:22:51] Speaker 03:
I think we are circling back to my profound disagreement with the assumption built in there that the Judicial Conference is refusing to engage in as-applied constitutional challenges.

[01:23:00] Speaker 06:
I understand.

[01:23:00] Speaker 06:
I'm asking the question on the assumptions.

[01:23:03] Speaker 06:
You'll have to take it on the assumption.

[01:23:04] Speaker 06:
I understand your position is different.

[01:23:07] Speaker 06:
At least two of those claims, maybe more, were not decided or addressed in this case.

[01:23:11] Speaker 06:
We can't find it in their decision.

[01:23:14] Speaker 06:
Then what do we do?

[01:23:15] Speaker 06:
It's a very weird posture.

[01:23:18] Speaker 06:
I don't know what we do.

[01:23:20] Speaker 03:
I don't think anything about the dilemma that would be of this court's own creation would change the plain meaning of Section 357C and what this court in McBride held it to mean.

[01:23:31] Speaker 03:
I do want to return to something in your earlier question about something about fact witnesses.

[01:23:38] Speaker 03:
Part of the rejection of the claims Judge Newman brought about transfer in the committee decision

[01:23:45] Speaker 03:
reflects the limited nature of the transfer denial that the Judicial Council has undertaken so far.

[01:23:51] Speaker 03:
The only matter it has declined to transfer is a misconduct proceeding that Judge Newman's counsel himself agreed did not require any witnesses and could be conducted on a, quote, paper record.

[01:24:08] Speaker 06:
If you had a situation, say as a Toomey versus Ohio situation, or not Toomey, that's too easy, but if you have something where judges are in fact, fact witnesses, or have personal experiential views and interactions with somebody that would, in an ordinary court case, mandate recusal, is it okay for them to decide a pure legal question?

[01:24:33] Speaker 03:
I don't know, Your Honor, and the judicial counsel has- You don't let them, they're off the case.

[01:24:37] Speaker 06:
Well, stop, there's no asterisk recusal.

[01:24:39] Speaker 06:
You don't come in to decide summary judgment, but not decide, but you can't sit on the trial because you've got information about the case, you've got a personal relationship.

[01:24:49] Speaker 06:
I mean, what's troubling here is the counsel's decision about why not to transfer is very much tied up to their own information.

[01:24:58] Speaker 06:
about why we don't want to transfer.

[01:24:59] Speaker 06:
We have the information.

[01:25:01] Speaker 06:
We're here.

[01:25:02] Speaker 06:
We're experiencing it.

[01:25:03] Speaker 06:
We're hearing these things.

[01:25:05] Speaker 06:
And so therefore, it would be less efficient to transfer it to someone else.

[01:25:10] Speaker 06:
They do not divorce the very facts that are the groundwork for the concerns about fair process, at least in appearance of the absence of fair process.

[01:25:23] Speaker 06:
They're interwoven in the very decision not to transfer.

[01:25:26] Speaker 03:
the misconduct.

[01:25:27] Speaker 03:
And nor did Congress think just like the Judicial Council think that that type of background knowledge or access to the on the ground situation

[01:25:37] Speaker 03:
meant that circuits should transfer.

[01:25:40] Speaker 03:
There is no provision in the act.

[01:25:42] Speaker 06:
That may be a statutory answer, I'm asking, if there's a constitutional question.

[01:25:48] Speaker 03:
And what I am doing is highlighting Congress's view on this constitutional question.

[01:25:53] Speaker 03:
And while, of course, not binding on this court, I think Congress's views on this issue are, at minimum, entitled to some respect.

[01:26:00] Speaker 03:
And then I want to direct the court to pages.

[01:26:02] Speaker 06:
Where does Congress have a view that says, keep it in-house?

[01:26:08] Speaker 06:
when the judges, because the judges will have personal experience with this judge and personal knowledge of the relevant facts, where did Congress make that judgment?

[01:26:18] Speaker 03:
In sections 351 through 354 of the act, which sets up a scheme in which judges of your home circuit decide these questions.

[01:26:27] Speaker 03:
The act does not provide for transfer.

[01:26:29] Speaker 03:
Transfer is permitted by rule, rule 26, which provides that in extraordinary circumstances,

[01:26:37] Speaker 03:
That's when transfer is appropriate.

[01:26:39] Speaker 03:
And the Judicial Conference here or its committee endorsed the Judicial Council's lengthy and detailed reasons at page 40 to 50 of its September order not to transfer in part.

[01:26:52] Speaker 03:
And I do want to make sure that the court appreciates it's at the bottom of page 18 of the committee decision.

[01:26:58] Speaker 03:
It explains that with respect to the misconduct proceeding, the court had a situation of

[01:27:04] Speaker 03:
potential disability where there were ongoing effects on the functioning of this court and that ready access to the committee was vitally important both for ensuring that all relevant information was captured in the investigation and providing court staff who it is alleged were on the receiving end of some very troubling behavior.

[01:27:28] Speaker 03:
had confidence that they were being heard.

[01:27:30] Speaker 03:
Had this foot.

[01:27:31] Speaker 06:
It's more efficient to have judges who know the facts and themselves may be fact witnesses design things, because that's more efficient than sending it off to a neutral arbiter who is objective about this and doesn't have personal knowledge or personal experience.

[01:27:45] Speaker 03:
And shipping it off.

[01:27:46] Speaker 06:
That's the answer.

[01:27:47] Speaker 03:
Shipping it off.

[01:27:48] Speaker 03:
And I think that was the Breyer Report's answer, too, is that there could be circumstances where transfer is appropriate.

[01:27:55] Speaker 03:
But the default is that you take care of this in home in part because the judges of the home circuit are closer to this problem and in part because it's more.

[01:28:05] Speaker 06:
Can you cite me another situation where.

[01:28:10] Speaker 06:
judges who have a council, a circuit council, has kept a case to sit in judgment on their colleagues.

[01:28:21] Speaker 06:
So not courts of appeals looking at district court, not district court looking at court of appeals, a colleague on their bench.

[01:28:29] Speaker 06:
And they kept it on the theory that we have personal knowledge of facts.

[01:28:35] Speaker 06:
And we have had personal interactions.

[01:28:38] Speaker 06:
Is there a case like that?

[01:28:39] Speaker 06:
Because there's lots of examples in their briefs.

[01:28:42] Speaker 06:
I don't know the full body here of ones where courts say, no.

[01:28:46] Speaker 06:
District court judges say, I will not sit on a case of a fellow district court colleague.

[01:28:51] Speaker 06:
I will not sit on the case of someone who's in the same courthouse as me.

[01:28:55] Speaker 06:
Do you have an example?

[01:28:56] Speaker 03:
I don't think they have a single example of a disability as opposed to a misconduct case being transferred.

[01:29:01] Speaker 03:
What is a misconduct case?

[01:29:03] Speaker 03:
It's true, but it started as a disability case.

[01:29:06] Speaker 06:
Then you can't use the rationale that this was just a narrow decision about misconduct.

[01:29:10] Speaker 03:
The disability inquiry remains in the background.

[01:29:14] Speaker 03:
It has been ground to a halt by the refusal.

[01:29:17] Speaker 06:
But then the problem there is, the disability one is where they really claim we have personal knowledge, we have personal experience, we have personal interactions, so that's not divorced

[01:29:27] Speaker 03:
That has that has not been resolved yet and both the council.

[01:29:31] Speaker 06:
Sorry, you can't say it hasn't been resolved, but then say we get to use that information that might prevent us from adjudicating the disability claim.

[01:29:41] Speaker 06:
But we can bring that into deciding the misconduct claim because it's related to that disability claim.

[01:29:47] Speaker 03:
Your honor, at the time the transfer request was made on April 21, the council and the committee had before it both an ongoing disability investigation and a newly opened misconduct inquiry.

[01:30:01] Speaker 03:
And the investigation it was undertaking was relevant to both.

[01:30:05] Speaker 03:
And I think there are very good reasons that a disability case where there is the potential for

[01:30:13] Speaker 03:
ongoing behavior instead of a discrete past-ASTA misconduct to affect the very courthouse you're in, there are very good prudential reasons to keep it.

[01:30:23] Speaker 03:
And certainly, that this did not rise to the level of extraordinary circumstances of transfer.

[01:30:28] Speaker 03:
Now, if we ever are able to restart the disability inquiry, the council has left open, and of course, Judge Newman would be permitted under the rules to call as witnesses fellow judges.

[01:30:41] Speaker 03:
At that point,

[01:30:42] Speaker 03:
Of course, the council may choose to transfer, or if it didn't, the conference might choose to reverse that decision.

[01:30:49] Speaker 03:
But we are not at that point yet.

[01:30:50] Speaker 06:
I understand you're not there, but then you just talked about, and I referenced as well, the fact that in their misconduct ruling itself, they pointed to matters of personal factual knowledge they have as judges that informed

[01:31:07] Speaker 06:
that misconduct decision.

[01:31:09] Speaker 06:
That's why this misconduct matter so much, right?

[01:31:12] Speaker 06:
It's preventing us from, we have these serious concerns about disability and they recite the order goes a great length.

[01:31:20] Speaker 06:
Spends a lot of pages discussing

[01:31:22] Speaker 06:
these factual assertions about disability.

[01:31:26] Speaker 06:
And then they go, but this has nothing to do with the disability.

[01:31:29] Speaker 06:
We're just deciding this isolated misconduct question.

[01:31:33] Speaker 06:
It doesn't hold up.

[01:31:35] Speaker 06:
It sounds like their personal information was affecting their decision on misconduct or certainly on the remedy chosen to address this misconduct.

[01:31:47] Speaker 06:
Don't let her do any work.

[01:31:49] Speaker 06:
That addresses both an interest, like interim relief on our disability concerns and addresses this misconduct.

[01:31:56] Speaker 03:
I disagree that there was personal knowledge or personal witness testimonies by judges underlying either the order to undergo neurological screening or the misconduct finding when Judge Newman invoked her right under Rule 4A5 to claim she did not need to comply with that order because she had, quote, good cause

[01:32:19] Speaker 06:
to resist it because they didn't just decide did she engage or misconduct not they then picked a remedy.

[01:32:25] Speaker 06:
They picked a remedy of an open ended.

[01:32:31] Speaker 06:
suspension.

[01:32:32] Speaker 06:
It'll just keep getting renewed.

[01:32:33] Speaker 06:
And even if she complies, they don't say, once you comply, you'll be back on the roll.

[01:32:39] Speaker 06:
They say, well, if you comply, then we'll consider whether we should moderate this or not.

[01:32:46] Speaker 06:
There is no time certain.

[01:32:48] Speaker 06:
The only time certain thing is if you comply, then you can come back and then we'll think about it again.

[01:32:53] Speaker 03:
Your Honor, I disagree that this order lacks a time certain.

[01:32:55] Speaker 03:
It is for one year.

[01:32:56] Speaker 03:
It is subject to renewal, but it is certainly not automatic.

[01:33:00] Speaker 06:
It has a time within a time.

[01:33:02] Speaker 06:
The time there is within it is, if you comply, you come back and then we will think about it.

[01:33:10] Speaker 03:
That is true, but it also had an end date of one year.

[01:33:13] Speaker 03:
And so in advance of that one year, the committee did not automatically

[01:33:17] Speaker 06:
It was renewed for the exact same reason?

[01:33:21] Speaker 06:
It was.

[01:33:22] Speaker 06:
Right.

[01:33:24] Speaker 06:
Is there any reason to think, given the nature of the decision that was made here, that absent compliance, it will not continue to be extended?

[01:33:34] Speaker 03:
I think potentially, yes, that there may be a form of compliance that the committee is considering right now.

[01:33:41] Speaker 03:
Judge Garcia asked for an update.

[01:33:44] Speaker 03:
Instead of seeking judicial conference review of the renewed suspension in September 2024, Judge Newman chose to file a motion for reconsideration.

[01:33:53] Speaker 03:
And contrary to her earlier refusal to provide much medical testing, she has submitted a new set of CT scans that she asserts conclusively prove that she does not suffer from a cognitive impairment.

[01:34:10] Speaker 03:
I think that the committee's most recently released report shows just how carefully and thoroughly it is considering that evidence, even though it is not the type of evidence that the court requested.

[01:34:22] Speaker 03:
The court requested the standard neurological screening that's used to determine cognitive impairment.

[01:34:29] Speaker 03:
Judge Newman has now come forward with an alternate form of evidence.

[01:34:33] Speaker 03:
The committee retained three experts who have examined this evidence.

[01:34:38] Speaker 03:
They have surfaced many questions about it.

[01:34:41] Speaker 03:
And if the court wanted to go into closed session, I would be happy to update the court on further developments since that report was released in February.

[01:34:50] Speaker 03:
But even what's on the public docket exists, I think, shows that just as a factual matter, we are not at an impasse.

[01:34:58] Speaker 03:
that the committee's mind, the council's mind is not closed.

[01:35:02] Speaker 03:
It's trying very hard to figure out a way forward here and that there is no reason to sit here today and to predict the type of quote ad infinitum suspensions that the judicial conference refused properly to read this as circling back to where we started.

[01:35:21] Speaker 03:
If the court thought there was some sort of as-applied constitutional problem here, the judicial conference would be the one, the appropriate body, to address that.

[01:35:31] Speaker 03:
Now, if the court thought it can address these as-applied challenges itself, we think it should simply reject them, largely for the same reasons we think the judicial conference already has.

[01:35:44] Speaker 03:
I'm happy to answer further questions if the court has them.

[01:35:50] Speaker 06:
Thank you very much.

[01:35:51] Speaker 06:
Thank you.

[01:35:53] Speaker 06:
Mr. Dolan, we will give you three minutes for rebuttal.

[01:36:01] Speaker 00:
Thank you, Judge Muller, and I'll try to be succinct as I can be.

[01:36:05] Speaker 00:
Let me just touch on the transfer issue.

[01:36:09] Speaker 00:
With respect to my learned colleague on the other side, I think the timeline is just incorrect.

[01:36:14] Speaker 00:
And as well as it's also incorrect that the transfer was denied only with respect to the misconduct.

[01:36:21] Speaker 00:
Transfer was denied when the disability issue was still pending when it was not resolved.

[01:36:27] Speaker 00:
It was denied.

[01:36:27] Speaker 00:
The very first letter that Judge Newman's counsel sent to the Judicial Council was requested transfer.

[01:36:33] Speaker 00:
This is long before the Judicial Council said, look, we're just going to put disability aside and just do this on a paper.

[01:36:39] Speaker 00:
They denied it.

[01:36:40] Speaker 00:
And they said, we might reconsider it if you submit to the medical testing and you submit medical evidence.

[01:36:46] Speaker 00:
But we might not reconsider.

[01:36:48] Speaker 00:
So I think that's just incorrect.

[01:36:49] Speaker 00:
Also, to the point that can we restart this process?

[01:36:52] Speaker 00:
Is it all because of Judge Newman's recalcitrance?

[01:36:55] Speaker 00:
We can restart this process on disability today.

[01:36:58] Speaker 00:
And Judge Newman has asked on multiple times that she will submit to whatever test if it was ultimately going to be decided by neutral adjudicators.

[01:37:05] Speaker 00:
And as to your question, Judge Millett.

[01:37:08] Speaker 05:
I didn't hear your last sentence.

[01:37:10] Speaker 05:
You said she will submit to whatever test.

[01:37:12] Speaker 00:
That is ordered by a neutral counsel, if it were transferred.

[01:37:16] Speaker 00:
Also, my colleague suggested that if the process gets restarted, she'll be able to call fellow judges as witnesses.

[01:37:25] Speaker 00:
That is just incorrect.

[01:37:27] Speaker 00:
In their September 2023 order, the judicial counsel said, we would actually preclude her from doing that because we would decide if she wants to call all of us as witnesses, it would probably be cumulative, unnecessary, and this would be just a transparent attempt to sandbag us and to make sure that we can't adjudicate it.

[01:37:44] Speaker 07:
They explicitly said that.

[01:37:45] Speaker 00:
That is, I don't have the page unfortunately in front of me, but that's the first suspension order.

[01:37:49] Speaker 00:
That's September, 2023.

[01:37:50] Speaker 00:
Of the committee or of the... I think it was, it was said in both.

[01:37:54] Speaker 00:
So I can provide the site, but it was done both by the committee and by the council.

[01:37:59] Speaker 00:
And finally, as my time is running short, I want to address McBride a bit.

[01:38:04] Speaker 00:
McBride itself, necessarily, 425 necessarily contemplates at least some as applied challenges.

[01:38:12] Speaker 00:
Because McBride leaves open the possibility

[01:38:15] Speaker 00:
to consider whether long-term suspension essentially affects removal, that is necessarily an applied challenge because you have to wait what kind of suspension is visited upon a judge to see is it long enough, to see is it global enough before addressing it.

[01:38:28] Speaker 05:
Well, you're talking about footnote five?

[01:38:30] Speaker 00:
Correct.

[01:38:32] Speaker 05:
It says, obviously we do not decide whether that would by its practical effect

[01:38:39] Speaker 05:
constitutional unconstitutional removal.

[01:38:42] Speaker 05:
I mean, one way of understanding that is they've just said we don't consider as applied challenges.

[01:38:48] Speaker 05:
So obviously, we wouldn't consider that as applied challenge.

[01:38:52] Speaker 05:
Why is that not?

[01:38:53] Speaker 00:
No, I don't I don't think that's the best way to read it.

[01:38:55] Speaker 00:
I think the court says that because by the time McBride came up, that his suspension already ran and the only thing that was left on the record is really reprimand.

[01:39:03] Speaker 00:
And the court said that, look,

[01:39:04] Speaker 00:
We're not considering this applied challenge, but we're, but we do not decide this specific question, which also recognizes that some suspensions could affect removal, which would not only run a file of the constitution, but we'll run a file of this statute.

[01:39:17] Speaker 01:
On the government's view, our opinion should have that exact same foot.

[01:39:23] Speaker 01:
It would say that's the as applied challenge.

[01:39:25] Speaker 01:
We also do not decide whether a long-term.

[01:39:28] Speaker 00:
I guess so, except that this is.

[01:39:30] Speaker 01:
It says quite clearly,

[01:39:31] Speaker 01:
in a lengthy section, many pages earlier, that adds applied challenges.

[01:39:37] Speaker 00:
But I think they reserved that as apply.

[01:39:38] Speaker 00:
I think that's the import.

[01:39:39] Speaker 00:
Otherwise, that footnote does not work.

[01:39:41] Speaker 00:
And of course, we're now in that situation.

[01:39:43] Speaker 06:
And in the last work, it flags a problem, a potential adds applied challenge for the judicial conference.

[01:39:48] Speaker 00:
No, I think that would that would they would identify would read differently said that look, this is a problem and maybe Congress ought to address it and maybe judicial conference ought to address it.

[01:39:56] Speaker 00:
I think I think the best reading of it that we're putting that issue to the side because this is not what happened to Judge McBride.

[01:40:03] Speaker 00:
And if you allow me just a couple more seconds, Judge, just to address two more points, an important one also about McBride.

[01:40:11] Speaker 00:
The problem is with McBride is that post McBride, Supreme Court decided Axon

[01:40:16] Speaker 00:
and where it explicitly said that administrative bodies, which judicial conference is, and they said it in their opinion, just in this case, not just before, in this case, that this is administrative proceedings.

[01:40:27] Speaker 00:
Administrative bodies, no matter who they're staffed by, whether they're staffed by Article III judges or ALJs, they do not have the power, they do not have the constitutional power to hear and adjudicate constitutional challenges, whether on its face or as applied.

[01:40:40] Speaker 00:
So whether you look at footnote five or whether you look at is McBride even good law.

[01:40:45] Speaker 06:
That is not what Axon said.

[01:40:47] Speaker 06:
Maxon said, an upfront facial challenge to the power of a body, its legal capacity, whether it's even a lawfully constituted body.

[01:40:57] Speaker 06:
They had appointment of removal questions to adjudicate that.

[01:41:01] Speaker 06:
That type of claim, your argument that this body can't decide anything about me because it is illegally and unconstitutionally constituted, allows me to get out of exhaustion requirements and go to district court.

[01:41:14] Speaker 00:
That's what they said.

[01:41:16] Speaker 00:
No, I think there's a good line the Supreme Court president says that administrative bodies simply cannot adjudicate.

[01:41:22] Speaker 06:
OK, is this either the Conference or the Circuit Council, are they executive branch agencies?

[01:41:32] Speaker 00:
No.

[01:41:32] Speaker 06:
They're Article III agencies.

[01:41:34] Speaker 00:
They're Article III agencies, but they're not courts.

[01:41:38] Speaker 00:
So the mere fact they're staffed by Article III judges should not make them courts.

[01:41:42] Speaker 00:
So there's still agency.

[01:41:45] Speaker 00:
I don't think I, in that sense, I don't think it matters.

[01:41:48] Speaker 00:
Um, and last point is the perception of bias at Judge Millett.

[01:41:52] Speaker 00:
You're exactly right that there is whether a real bias or perception of bias that you have before you, the brief by the DC bar that says that one of the reasons the facts are not that the court needs to delve into them, but one of the reasons the facts are presented to the DC, to the federal circuit are so one sided is because

[01:42:09] Speaker 00:
Some of the attorneys who have litigated in front of Judge Newman's who appear before her are not comfortable speaking up on her defense precisely because of this nature, which in turn makes this case extraordinary.

[01:42:20] Speaker 06:
Any other questions?

[01:42:21] Speaker 00:
Thank you very much.

[01:42:22] Speaker 06:
Thank you very much to both counsel.

[01:42:23] Speaker 06:
The case is submitted.