The nine judges of the D.C. Court of Appeals were sitting in their private conference room in the courthouse one day last spring, deliberating a case that would decide a suspect's right to a speedy trial, when Judge George R. Gallagher interrupted Chief Judge Theodore Roosevelt Newman Jr.
Newman admonished Gallagher for butting in and Gallagher apologized. But, noting that Newman was himself a bit of an interrupter, Gallagher added, "That wouldn't be a bad idea for all of us to remember."
Newman angered, slammed his fist on the table, pronounced the conference adjourned and stormed off to lunch, leaving his colleagues to deliberate -- bewildered and leaderless.
This spring, the panel, the state supreme court of the nation's capital, was weighing the merits of a case that pitted the defendant's right to fair trial against First Amendment guarantees of freedom of the press.
One of Newman's conservative opponents on the court, feeling the chief judge was trying to commander personal control of the case to ensure a liberal decision, fired off an angry memo to Newman and called an immediate meeting of the judges, who voted to seize the case from Newman's control.
"After trying without success to have a meaningful discussion with the chief judge . . . I then felt compelled to take my problem to the full court," Gallagher explained in a May 29 confidential memo to Newman and another judge. "If there should in the future be a repetition of this sort of disregard . . . I will not countenance it."
And in still another instance, when the court was late last year considering the legality of an emergency moratorium on condominium conversions imposed by the City Council, Newman's opponents accused the chief judge of manipulating assignment procedures in order to control the majority opinion in a case where he logically would be among the dissenters.
Newman at first sided with the more conservative judges. "Welcome aboard," Judge Stanley S. Harris wrote in a mildly sarcastic memorandum dated Dec. 6, 1979. Harris suspected that Newman would eventually switch the opposing side. Shortly after Newman made the assignment, he did switch, saying he had changed his mind. Privately, some of Newman's opponents complained that he was merely "flip-flopping" on the issue -- the same complaint that has often been lodged against Warren E. Burger, chief justice of the U.S. Supreme Court.
Nothing is simple any more at the D.c. cOurt of Appeals.
The feisty, chain-smoking Newman has asked to be appointed to a second term. But controversy over his first term as chief judge has plunged him into the biggest political battle of his career and brought to the surface tumult, backbiting and a rash of angry internal memos -- including one accusing the chief judge of "incontinent" actions -- from his judicial colleagues.
Despite the bitter controversy, many of Newman's supporters said last week that they are confident he will be renominated.
The nine-judge panel, established in 1970, was expected to be a tranquil haven of judicial repose for faithful government lawyers with choice political connections. These days, it is not. There are growth pains.
"Things are so unpleasant," one judge complained to a colleague recently, "I'm beginning to wish I were on the [less prestigious] trial court."
"It used to be so nice when we all liked each other," recalled one judge's wife, remembering the bygone days of dinners and socializing within the judicial family.
The current controversy is in effect a power struggle. On one side is Newman, a 46-year-old, round-faced Harvard Law School graduate, a liberal-leaning Republican who has headed the court since his appointment in 1976 by Gerald R. Ford.
His principal opponent is Judge Frank Q. Nebeker, 50, a stern-faced former prosecutor appointed to the court by Richard M. Nixon in 1969, and the virtual leader of the court before Newman arrived.
The D.C. Judicial Nominations Commission, a seven-member panel whose decision does not have to be approved by any other government officials, will begin deciding this week whether to appoint Newman to a second four-year term as chief judge. Nebeker is leading three of his colleagues to oppose Newman's reappointment.
On its broadest scale, some say, the battle over Newman's post is a conflict over whether the court should be a check on, or reinforcement for, the legislative and executive actions of the city's young home-rule government. But other factors are at play as well.
There are ideological differences and personality conflicts which a few of the judges and some knowledgeable observers contend privately have racial overtones.
Newman is black -- the only black in America who is head of a state court system -- a longtime city resident and an outspoken supporter of reinforcing the authority of the home-rule government. All four of his opponents are white and view the court's role as that of the final arbiter of the powers of home rule. Three of them live in the suburbs.
Newman's supporters contend that conservative whites are merely trying to oust a supremely self-confident, assertive -- and some say arrogant -- black man from a powerful position. His detractors argue that he has a volatile personality that makes him impossible to work with, that he is antiwhite and an embarrassment to the court.
Last year, Nebeker received a letter from an Illinois appeals judge who had met the blustery Newman at a judicial conference in San Francisco. "Christ had his cross," Justice Richard Mills wrote to Nebeker on Nov. 5, 1979, "and you sure as hell have yours! My deepest sympathy!"
Echoing comments such as these, his opponents argue that Newman is unsuited to serve as the top-ranking judge in the city because, they contend, he is impatient with his collegues, too aggressive on the bench, manipulates cases in the judges' secret conference, is rude and occasionally becomes involved in what they consider to be partisan political activities.
In reality, however, the battle lines are less clearly drawn than either side contends. Traditional distinctions between liberal and conservative, Democrat and Republican, are blurred. Newman, for example, considered one of the court's more liberal members, was active in the local Nixon-Agnew campaign in 1968. Two of his opponents on the court, considered moderate judges, were active in liberal Democratic politics before being appointed to the court by Lyndon B. Johnson.
The four judges who oppose Newman -- dubbed "the quartet" in some courthouse circles and "the gang of four" in others -- have served under two previous chief judges. The four are Nebeker, Gallagher, Harris and John W. Kern III.
Newman's de facto allies on cases are trying to stay out of the active conflict over his reappointment. They are Julia Cooper Mack, William C. Pryor, Catherine B. Kelly and John M. Ferren.Mack and Pryor are black. Mack, Kelly and Ferren generally vote with Newman and form the liberal wing of the court. Pryor is more in the center, along with Kern and Gallagher -- two of Newman's opponents.
Only Newman would speak for the record on the controversy -- and only to say he won't comment. He said:
"The proceedings before the Judicial Nominations Commission are by statute confidential. The deliberative processes at the D.C. Court of Appeals, as with appellate courts, generally, are confidential. In my view, it is inappropriate for me to comment on proceedings before the commission, and particularly in my view, to comment on confidential matters transpiring at the D.C. Court of Appeals."
The appeals court, set up by the Nixon administration in an effort to circumvent the liberal U.S. Court of Appeals headed by David L. Bazelon, which previously handled D.C. cases, tops what is undoubtedly the most obscure part of the District's three branches of government. But in the decade of its existence in its present form, the court has become a vastly important and powerful force in the city.
This was the court which in May struck down the emergency moratorium on condominium conversions imposed by the City Council to alleviate displacement problems in the city. In what was considered a defeat for Newman, the court ruled that the council enacted the legislation in a way that assumed greater authority than that granted by the Home Rule Charter.
The court rejected an appeal by citizens groups to halt all construction on the controversial $99 million downtown convention center pending a voter referendum. Instead, the court upheld the power of the mayor to proceed with spending on the project prior to the outcome of any proposed referendum -- a victory for Newman. [The full court later vacated that decision and a final decision is now pending].
The court has also struck down laws used by city police to harass homosexuals, ordered the city to refund $40 million collected through a professional tax it had no authority to impose and issued several decisions outlawing court practices that many women's groups considered harassment of rape victims, such as the need for corroboration of the victim's testimony and recitation in court of the victims' sexual history.
The appeals court judges have some of the fanciest offices in two-year-old, $40-million D.C. Courthouse building, which also houses the 44-judge D.C. Superior Court.
Spread through several long hallways are the judges' chambers, each adorned with loaned artwork from the National Gallery, walls of law books, rich carpeting and wood paneling. Newman's office is specially paneled in teak to match a personally owned teak desk that he brought to the court. The eight associate judges each have two law clerks (the chief judge has three) who studiously craft opinion drafts and memorandum orders.
Like the U.S. Supreme Court, there is a large courtroom where the judges hear case arguments, and a large conference room where they meet to discuss cases, deliberate and vote in private. Here Newman, as chief judge, wields great power. If Newman is in the majority of any vote, he can determine which judge will write the opinion, or he can take it for himself.
Most of the cases that come to the court, some 1,200 a year, are appeals from the D.C. Superior Court. The rest, which include lawyer disbarments or D.C. agency appeals, make up about 10 percent of the court's caseload. Usually a case is first heard and decided by a "merits panel" (or division) of three randomly selected judges. The losing party may appeal a panel decision to the full court sitting 'en banc'. The merits panels issue approximately 300 written opinions annually, and about a thousand other judgments and miscellanous orders. The full nine-member court accepts and decides only about a dozen cases of "exceptional importance" each year.
How the four judges came to take their unprecedented step against Newman is a story of behind-the-scenes courthouse intrigue.
At first, there were awkward whispers among the quartet of judges in the hallways and in chambers. Then there were more formal discussions between the judges at lunch at the Bolling Air Force Base or in the basement cafeteria of the National Gallery of Art, avoiding their specially designated tables in the judges' private dining room at the courthouse.
The dissident judges were said to feel that Newman had to restrained in his interactions with other justices, "like the conductor of a small chamber music concert, not a bassoon soloist," according to one source. Yet each had had run-ins with Newman that caused growing animosity.
Harris, for example, was once discussing a case with Newman, and the two disagreed. Newman stormed out of the chambers, saying "If you don't write it that way, I'll get the votes and overturn you."
The four judges seeking to have Newman replaced as chief were terribly nervous about being seen together, or appearing conspiratorial. After a group of secretaries encountered them at the judges' elevator after lunch one afternoon, there was momentary silence, then Judge Nebeker burst out, "Then it's decided -- we will have vanilla ice cream at our next party."
Judge Nebeker had once been the power behind the court. Although he never was the chief judge, he worked diligently with Harris and other conservative judges to steer the court away from the liberal rulings of the U.S. Court of Appeals which had governed the District prior to 1970.
Nebeker and Newman rarely agree on any issue. They strenuously dissent from each other's opinions. They often bash heads at oral arguments. Sometimes lawyers' oral arguments before the nine judges deteriorate into confrontations between Nebeker and Newman, with one shouting "You don't have to answer that" to an attorney attempting to answer a question from the other.
After one particularly grueling exchange on the bench, Newman returned to his chambers grumbling to a law clerk, "Did you see what he did to me today?" Nebeker will often toss his pencil up against the court's sloping bench in disgust, letting it roll back into his lap.
A balding, stern-faced man who is rarely seen without his dark-rimmed glasses, Nebeker is the former head of the appellate division of the U.S. Attorney's office here and has a national reputation in criminal law. He also worked in the dapartment's internal security division, and was appointed to the bench by Richard M. Nixon in 1969. His stated view is that the Appeals Court should not be an "activist (court) but a steadying influence" on the law.
Some observers see the battle between Newman and the other judges in racial terms.
To most blacks the appeals court before Newman was seen as highly conservative, "an estranged animal," said one lawyer. "His presence alone made the community feel a greater affinity with the judicial system. Lawyers no longer felt all was lost if they lost their case at the trial level."
The fact that Newman is seen as highly ambitious and arrogant and as has intimated to friends that he would like to be a U.S. Supreme Court judge, would be acceptable in a white judge, his supporters contend. "All judges are arrogant," says a black lawyer who knows Newman well. One of Newman's former law clerks says that if Newman's were white, "his arrogance would be seen as brilliance." Others contend that Newman is acting no differently than his predecessors as chief judge.
The sense of confidence and cockiness Newman exudes is traceable to his boyhood in Tuskegee, a college-town oasis in the heart of southern Alabama's cotton and peanut fields. Newman's Tuskegee was a nearly all-black town where oveerachieving -- being twice as good as whites in order to be equal, he says -- was seen as the key to stepping beyond the bounds of a rigidly segregated society.
In the Tuskegee of that day, recalls one of Newman's contemporaries who also grew up there, "You might have gotten a complex if you didn't succeed yourself."
When Newman, the son of a Methodist minister, was trying to decide which college to attend, and had only heard from his second-choice school, his mother, a teacher, advised him not to worry. He could be a "big fish in a small pond," she advised. His father disagreed. "Hold out," he told his sons, "And try to be a whale in the ocean." Ted Newman held out.
When Alabama civil rights leaders asked Newman to be a test case in their attempts to get blacks admitted to the University of Alabama law school, Newman declined and went to Harvard instead. He always said he wanted the best in order to be "as well equipped as anybody I would battle against."
As a judge presiding over trial courts in the early 1970s, his most noteworthy opinion, hailed by women's groups, concerned the corroboration of evidence in rape cases. Newman gained a reputation as a fair judge, somewhat partial to the underdog. Once, while smiling, he told a prosecutor in an argument: "Sir, the Washington Monument is that way. You can go perch on it, and rotate on it."