When I decided to spend my summer as an intern at the New Civil Liberties Alliance, I had no idea I’d change my mind about the U.S. Constitution. But conversations with our elders have a way of changing our perspective. U.S. Circuit Judge Pauline Newman convinced me that the Framers got it right when they decided that judges should have life tenure during good behavior.
Judge Newman, who just celebrated her 96th birthday in June, has served on the United States Court of Appeals for the Federal Circuit from nearly the time of its inception. She is currently embroiled in a high-profile disagreement with the Chief Judge of that court, who by all accounts believes that Judge Newman is no longer fit for judicial service. This unfortunate situation has drawn a great deal of media attention, including from the Washington Post and Bloomberg, as well as public statements from two former chief judges of the Court of Appeals for the Federal Circuit, Judge Paul Michel and Judge Randall Rader, and current U.S. 5th Circuit Court of Appeals Judge Edith Jones, who previously served as that court’s chief judge. NCLA is representing Judge Newman as she asserts her Constitutional right to remain on the bench until she chooses to retire.
Amid this unpleasantness, Judge Newman was kind enough to invite NCLA’s summer clerk class to spend an afternoon with her in her chambers. Our visit with Judge Newman was a highlight of the summer, not least because of the insights this visit gave me into the wisdom of lifetime judicial appointments.
I know very little about patent law, but within five minutes, I knew that I was in the presence of greatness. Judge Newman gave our group a seminar-level overview of many topics, including intellectual property, law and economics, the development of the Federal Circuit, and the consequences of the America Invents Act for patent litigation. She also dispensed priceless advice about life from the perspective of an experienced woman living such a long and illustrious one. It was no surprise to learn that, after Judge Newman’s difficulties on the court began, several law schools invited her to serve as a law professor. Judge Newman declined because she is convinced that her experience and knowledge are best applied in the judiciary itself.
After spending several hours with her, I can’t see how anyone could disagree. Judge Newman is a fascinating woman who could have chosen nearly any path in life. After studying to become a doctor, she decided instead to become a research chemist, earning a PhD in chemistry from Yale and breaking barriers as a female scientist. She received several patents (which take pride of place in her office) before becoming a patent attorney and enjoying an impressive career, which included a science policy role within the United Nations. Her intellectual curiosity and her status as a trailblazer in male-dominated professions earned her the admiration and friendship of another prominent female jurist — Supreme Court Justice Ruth Bader Ginsburg, who once praised Judge Newman for inspiring women with “her intelligence, her diligence, [and] her devotion to a very difficult area of the law.”
I count myself among the women inspired by Judge Newman. She is an exemplary civil servant, wholly committed to public service, and it is remarkable that she, like her friend Justice Ginsburg, has chosen to continue on the bench for as long as she remains able to carry out her duties. I think it is amazing that someone with such an incredible mind decided to dedicate herself to incrementally improving our country’s system of intellectual property. By the end of our visit, I was quite persuaded that Judge Newman performs a profound public service, not just with each dissent she writes, but with each day she remains on the bench with the full scope of her experience available to her law clerks and colleagues.
When Judge Newman was appointed to the Federal Circuit thirty-nine years ago, she was already an experienced patent lawyer and policy expert. As that court’s most senior member, Judge Newman has gained an additional level of insight into the complex world of intellectual property. Her institutional knowledge and long-term perspective are not just unique: they’re irreplaceable. Judge Newman has witnessed nearly every major scientific advancement of the twentieth century, including the atomic bomb and the moon landing. She has also had a front row seat to the evolution of the United States patent system and its associated legal framework, and has a great deal to say about it, both in person and in her many legal opinions, which have led scholars to refer to her as “the great dissenter.” Even her critics recognize the value of her dissents, which have been vindicated by the U.S. Supreme Court.
I left Judge Newman’s chambers stunned that anyone could question her fitness to serve, but I quickly realized that until meeting her, I, too, was receptive to arguments seeking to curb life tenure for judges. In fact, the day before I met Judge Newman, I had lunch with two Brazilian attorneys who were fascinated by the current media coverage of various “ethics scandals” around the U.S. Supreme Court. They felt that mandatory judicial retirement (at age 75) insulated the Brazilian judiciary from several issues. After leaving Judge Newman’s chambers, I wished that I had met her a day earlier, so that I could have told these attorneys how wonderful it is that our Constitutional system of life tenure has given a genius more than two additional decades on the bench — and with it, more than two additional decades of knowledge and experience. It’s a shame that in my native Brazil, an intellectual titan like Judge Newman would have been forced to hang up her gavel, possibly without ever reaching her full force and potential as a jurist.
Many of my law school professors and classmates support mandatory retirement ages or fixed terms for judges and would likely prefer the Brazilian system to ours. These reform advocates say the Framers couldn’t have foreseen the increases in the average American lifespan. To support their positions, they point to their individual experiences with judges who perhaps ought to have retired, as well as Alexander Hamilton’s Federalist 79. Hamilton wrote that a “superannuated bench” was an “imaginary danger” in light of living conditions (and their correlated short lifespans) in the American colonies. Maybe you’ve heard reform advocates’ argument: the average American was dead by 40 in 1776, so Hamilton underestimated the potential damage of a legion of senile judges.
Revisiting Federalist 79 after meeting Judge Newman, I am struck by just how correct Alexander Hamilton was. He deems a superannuated bench an imaginary danger, in part because there are “few … who outlive the season of intellectual vigor.” Hamilton even suggests that being a judge is a proper occupation for older Americans, since “the deliberating and comparing faculties … preserve their strength much beyond [the age of sixty].”
Judge Newman proves Hamilton correct, standing as an object lesson for the genius of judicial independence and life tenure. There can be no doubt that Judge Newman continues to enjoy the “season of intellectual vigor,” with full control of her supremely strong “deliberating and comparing faculties.” After our conversation, I felt embarrassed that I never stopped to ponder the unique advantages of having a seasoned, capable elder continue in judicial service for as long as they feel that they have something to offer the American people. I hope there are many more judges like her throughout the country, and that Alexander Hamilton is correct in his assessment that there are comparatively few who are no longer able to fulfill their duties. Even if the critics of our system were correct, and there were some national epidemic of senile judges, I’d probably still think ours was the better system – if there are even ten judges like Judge Newman, it’s working just as the Framers intended.