Judge Newman's Recent Dissents Show She Is Fit For Service

Abstract

After four decades of admirable service to the Federal Circuit, Judge Newman is under investigation by the very institution she serves. The complaint faulted Judge Newman for writing fewer than average majority opinions, despite the fact that the court had at its own volition reduced her caseload, and importantly, without considering her many dissenting opinions.

Almost two-thirds of Judge Newman's opinions in the past year have been dissents. If the charge is that Judge Newman is not carrying her share of the workload, excluding her dissents from consideration is inappropriate. The Constitution's grant of lifetime tenure for Article III judges is for good reason not made contingent on them agreeing with their colleagues.

Judge Newman's role as a frequent dissenter is nothing new, and has rightly been celebrated as an important one, especially in light of the fact that the Federal Circuit has exclusive subject matter jurisdiction and thus does not benefit from the various viewpoints of different circuit courts. Indeed, the Supreme Court has apparently at times been influenced by Judge Newman's dissents.

The Federal Circuit's Kafkaesque investigation has now apparently shifted its focus to Judge Newman's alleged failure to be fully compliant with the investigation itself. Yet when one examines the quality of Judge Newman's recent opinions, including her dissents, nothing about them indicates that she is no longer fit for judicial service.