by
Bill
O’Leary/The
Washington
Post
via
Getty
Images)
Can
Pauline
Newman
get
a
damned
break?
Yesterday,
her
lawyer
argued
the
claim
that
used
to
be
taken
as
a
given:
Article
III
judges
are
pretty
damned
hard
to
get
rid
of
without
their
consent,
bad
behavior
or
a
death
certificate.
Put
differently,
people
have
been
referring
to
their
gigs
as
lifetime
appointments
for
a
while
now
and
no
one
has
batted
an
eye.
For
reasons
that
I
do
not
pretend
to
know,
the
oral
argument
instead
became
fixated
on
Newman’s
lawyer’s
musings
about
judges
who,
for
reasons
inapplicable
here,
are
unable
to
carry
out
their
duties.
Strange
line
of
questioning
when
the
case
concerns
a
judge
who
is
able
to
do
her
duties
so
well
that
she
still
managed
to
get
a
dissent
affirmed
by
the
Supreme
Court
during
her
stealth
impeachment.
Law360
has
coverage:
“Your
theory
leaves
no
room
at
all,”
said
U.S.
Circuit
Judge
Patricia
A.
Millett.
“This
is
the
statute
not
just
about
misconduct,
but
about
disability.
If
you
do
the
impeachment
process,
you’re
out.
There’s
no
temporary
impeachment.
And
you
are,
in
fact,
convicted
of
a
crime.
You’re
going
to
lose
any
pension
you
might
have,
any
benefits.
You
lose
everything.”She
continued,
“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.
And
that
somehow
the
Constitution
forced
that
choice
seems,
to
me,
an
extraordinary
proposition.”
Fascinating,
but
fucking
irrelevant.
We
should
all
be
able
to
recognize
a
red
herring
when
we
see
one
—
deal
with
the
able-bodied
jurist
fighting
to
do
their
damned
job
for
the
last
two
years
who
is
standing
in
front
of
you
rather
than
conjuring
what
if
scenarios
that
are
complete
departures
from
the
facts
of
the
case.
And
while
it
was
a
brilliant
rhetorical
flourish
for
Judge
Millett
to
frame
most
people’s
common
sense
understanding
of
the
conditions
to
get
rid
of
Article
III
judges
as
an
“extraordinary
proposition,”
she’d
be
better
off
referring
instead
to
“the
actual
text
of
the
Constitution.”
Read
it
for
yourself
—
the
Constitution
doesn’t
have
some
magic
catch-all
for
judges
to
axe
their
colleagues.
It
might
have
felt
yucky
to
hear
Newman’s
counsel
Greg
Dolin
name
death,
retirement
and
impeachment
as
the
only
conditions
for
removal
contemplated
by
the
Constitution,
but
at
least
it
was
rooted
in
the
document.
But
hey,
let’s
not
be
too
harsh.
Maybe
Judge
Millett’s
memory
went
a
little
hazy
on
this
part
of
the
Constitution.
Memory
is
a
tricky
thing
to
keep
track
of,
but
I’ve
got
a
lead
on
someone
who
knows
a
few
neurologists
that
can
check
for
recollection,
judicial
competency
and
the
like:
Pauline
Newman.
Several
actually,
since
her
panel’s
baseless
accusations
forced
her
to
go
to
multiple
brain
experts,
one
that
directly
challenged
the
panel’s
misreading
of
his
report
and
another
that
proved
with
pictures
that
Newman’s
brain
looks
like
it
belongs
to
someone
decades
younger
than
her.
Judge
Millet’s
gut
check
that
it
is
too
extreme
for
the
Constitution
to
require
“declaring
a
judge
a
criminal”
before
you
can
force
a
judge
out
of
their
seat
might
feel
right
to
her,
but
it
isn’t
the
job
of
a
judge
to
evaluate
the
Constitution
based
on
vibes
and
feelings.
If
that
is
what
the
Constitution
requires,
tough
luck.
If
you
feel
bad
about
what
the
Constitution
requires,
it
is
totally
fair
game
to
rally
support
for
an
amendment
to
be
made.
That’s
the
solution,
not
a
lone
panel
doing
all
sorts
of
process
fuckery
in
the
name
of
“policing
their
own.”
There’s
also
a
big
IF
on
whether
it
actually
requires
Congress
to
“declare
them
a
criminal.”
Judge
Millett
spoke
conclusively,
as
though
judicial
impeachment
requires
the
same
“High
Crimes
and
Misdemeanors”
standard,
but
there’s
at
least
a
colorable
argument
that
this
isn’t
actually
the
case.
The
language
in
Article
II
is
pretty
clear:
moving
to
impeach
the
President,
Vice
President,
or
any
civil
officers
is
necessarily
connected
to
conviction
(in
the
Senate…
which
isn’t
actually
a
criminal
court)
for
a
high
crime
or
misdemeanor.
But
the
term
of
judges
in
Article
III
is
different.
Article
III
impeachment
is
anchored
by
the
much
more
vague
“good
behavior”
standard.
While
most
assume
judicial
impeachment
tracks
the
Article
II
language,
there’s
scholarship
supporting
the
idea
that
“good
behavior”
creates
another,
lesser,
and
non-criminal
justification
for
removal.
Under
this
interpretation
a
judge
that
falls
in
to
a
coma
for
an
extended
period
of
time
can
be
impeached
for
—
you
guessed
it
—
being
in
a
coma
for
an
extended
period
of
time.
Whatever
“good
behavior”
entails,
it
surely
includes
being
capable
of
and
actually
doing
the
job
assigned
to
you.
If
this
becomes
the
basis
for
removing
the
judge
from
office
and
they
wake
up
from
the
coma
able
to
do
the
job,
they
can
be
nominated
by
the
President
and
confirmed
by
the
U.S.
Senate
a
second
time.
Not
sure
how
this
would
impact
their
pensions
or
benefits,
but
its
an
otherwise
easy
solution
with
no
constitutional
compulsion
to
declare
them
a
criminal.
Now
that
that’s
all
nice
and
dealt
with,
can
the
judges
ask
questions
about
what
would
happen
if
a
judge
was
accused
of
being
physically
unfit
because
they
had
a
heart
attack
but
then
went
to
a
doctor
to
prove
that
that
never
happened
and
then
when
the
accusations
were
proved
demonstrably
false
no
one
got
in
trouble
for
effectively
lying
under
oath
or
if
a
judge
was
accused
of
yelling
at
a
clerk
when
they
were
reasonably
frustrated
about
their
computer
being
seized
from
her
office
or
if
a
judge
had
their
cases
stripped
from
them
because
they
refused
to
get
an
examination
but
then
when
they
got
the
examination
the
panel
decides
those
weren’t
good
enough…
you
can
go
on
and
on.
You
still
get
to
scratch
that
“if”
itch,
but
these
questions
actually
correspond
to…
you
know…
actual
issues
in
dispute.
Like
Article
III
requires.
DC
Circ.
Fears
Newman
Atty
Would
Impeach
Disabled
Judges
[Law360]
Earlier:
A
Lifetime-Appointed
Judge
Was
Accused
Of
Not
Being
Able
To
Do
Her
Job.
She
Brought
Receipts.
Pauline
Newman
Speaks:
ATL
Interviews
The
Judge
Who’s
Fighting
To
Do
Her
Job
Pauline
Newman’s
Doctor
Has
Some
Choice
Words
For
The
Judicial
Panel
That
Ruled
Against
Her
Huge
Development
In
Pauline
Newman’s
Case:
The
Test
Results
Are
In!
Chris
Williams
became
a
social
media
manager
and
assistant
editor
for
Above
the
Law
in
June
2021.
Prior
to
joining
the
staff,
he
moonlighted
as
a
minor
Memelord™
in
the
Facebook
group Law
School
Memes
for
Edgy
T14s.
He
endured
Missouri
long
enough
to
graduate
from
Washington
University
in
St.
Louis
School
of
Law.
He
is
a
former
boatbuilder
who
is
learning
to
swim, a
published
author
on
critical
race
theory,
philosophy,
and
humor,
and
has
a
love
for
cycling
that
occasionally
annoys
his
peers.
You
can
reach
him
by
email
at [email protected] and
by
tweet
at @WritesForRent.