Four D.C. Court of Appeals judges Tuesday launched an unprecedented campaign to block the reappointment of Chief Judge Theodore R. Newman Jr. with a scathing denunciation of Newman's judicial behavior and integrity at a closed-door meeting of the D.C. Judicial Nominations Commission, according to documents obtained by The Washington Post.
"The issue is simple though the decision is difficult," Judge Frank Q. Nebeker, Newman's principal opponent, told the seven-member commission. "Whether it is in the public interest to retain [Newman] when nearly overwhelming evidence shows his systematic injudiciousness, his deficiencies in temperament, his unilateral and unauthorized public pronouncements over court policy, his prediction for power rather than public service, and the spectre of the humiliation and worthlessness felt by court personnel as a result of his treatment of them."
Nebeker accused Newman of having a personality so "explosive" that "independence and free exchange of views has almost disappeared behind closed dorrs" at proceedings of the nine-member court, the city's equivalent of a state supreme court.
Judge John W. Kern III added that Newman "has so impaired the court's functioning by his actions and temperament that his colleagues are forced to speak out publicly in order to save the court as an institution," according to official documents of the two-hour, closed-door meeting.
The statements of Kern, Nebeker and two of their colleagues -- George R. Gallagher and Stanley S. Harris -- Highlighted the first day of official proceedings of what amounts to an intense power struggle on the court.
In a courthouse battle that the dissident judges say only involves differences in style, but others say includes philosophy, the powers of the home rule government and race, Newman, the only black judge to head a state-level court system, is being vigorously opposed for reappointment to a second four-year term.
The four judges opposing Newman are the more conservative on the court. All four are white, three live in the suburbs and, as a group, they tend to feel that the court should be a check and balance on the authority of the home rule government.
Newman, 46, is a feisty and supremely self-confident Harvard Law School graduate who was raised in Tuskegee, Ala. A District of Columbia resident, he is a moderate Republican appointed to the court by Gerald R. Ford in 1976 and believes the role of the court should not be to second guess the D.C. government's actions, but generally to reinforce them.
Newman privately has told acquaintances that his actions are no different from those of his predecessors of more conservative persuasions, during whose tenure those now opposing him had more influence.
Tuesday's meeting in the 6th floor courthouse conference room of the court was delayed for several hours while D.C. Superior Court Judge Frank E. Schwelb considered a request by lawyers from The Washington to open the meeting to the public. Schwelb denied the request.
The four judges, who appeared Tuesday along with three lawyers familiar with the court's operations, declined to comment yesterday.
Newman, scheduled to present his own testimony late yesterday, also refused to comment. "It is inappropriate for me to comment on matters pending before the commission since their proceedings are confidential," Newman said. "At least as to myself, I intend to honor that obligation of confidentiality.
The commission has sole authority over the selection of a chief judge for the court, and is expected to make its decision next week. The panel could at that time either reappoint Newman or appoint one of the other eight, but it could not remove him from the bench.
The four judges who appeared at the extraordinary meeting Tuesday read nearly 40 pages of prepared statements, answered questions posed by commission members and played tape recordings of lawyers oral arguments before Newman and the other judges.
The judges accused Newman of monopolizing oral arguments. Harris said he had timed one of Newman's statements with a stop watch and found that the chief judge use 11 of the 22 minutes allotted to a lawyer arguing before the court. They also said he cuts off lawyers responding to questions of other judges.
"The chief judge's antics monopolize precious advocacy time," Nebeker said, according to documents. "He castigates and ridicules lawyers, threatens them with complaints to their superiors. Combined with other characteristics on the bench, it serves to prevent other judges from elicitng answers to their own concerns."
"At the sacrafice of decorum and collegiality," Nebeker said, [Newman's] bombastic play for center stage leads him to interrupt the questions of his colleagues and gratuitously provide his answers."
Harris said that "on a number of occasions it has required extreme self-dicipline on my part to keep from walking off the bench in protest and disapproval of [Newman's] monopolization of argument time, his abuse of attorney's and his reflection of what side he supports though comments and facial gestures."
Harris said that at one point several months ago, Judge Julia Cooper Mack, who is not actively opposing Newman and often votes with him on court decisions, turned angrily to the chief judge as they were leaving the bench "and stated what I recall roughly to be: 'Can't you ever be quiet? tI can't even think up there with you constantly talking and asking questions." i
The judges also tried during the commission meeting to dispel accusations that their opposition to Newman is racially or philosophically motivated.
Harris told the commission members that Hubert A. Pair, a black judge and former D.C. Corporation Cousel who retired from the bench several years ago, "is ready and willing to make clear that such a charge is totally false."
The judges also disclosed details of various actions by Newman during the court's usually secret deliberations.
Harris contended before the commission that in 1977 Newman had tried to hold up the inssuance of a court oppinion on a complex public utilities case on which Harris had worked until after Newman returned from an out-of-town trip.
"By a memo dated July 14, I told Judge Newman that I felt a duty to dispose of the case 'as quickly as its normal progress permits'," Harris told the commission members."That afternoon, Judge Newman telephoned me. In a voice trembling with rage, he told me . . . that 'If it's war you want, baby, it's war you'll get' . . .
Newman added, according to Harris, "that he would consider the case on his return when he 'damned well felt like' turning to it. At the end of his tirade, he slammed the phone down abruptly. The move which he took delayed issuance of the opinion for another four months." (Newman eventually asked for a full court vote on the case, and the Harris opinion was vacated and reserved).
In another instance, Harris said, he and Newman argued over Newman's decision to review an opinion issued by a three-judged panel of which Newman was not a member. Harris said Newman at one point "castigated" him before the other judges.
"After the other judges left," Harris said, "I started to explain that . . . there are limitations on the chief judge's prerogatives.
"He interrupted me and said in words which I remember clearly and which do not lend themselves to ready paraphrasing: 'You ain't got Reifsnyder, baby, you got me. Get out of my office," (C. Frank Reifsnyder, a former law partner of Harris at Hogan & Hartson, reportedly was in line for the appeals court seat Newman eventually got).
Judge Gallagher, who with the other three judges originally sent a letter to the commission opposing Newman, stressed that there were other judges who agreed with their views. "It has been painted as a viewpoint confined to the four signing judges. "Unless words have lost their meaning and my powers of observation have failed me, I doubt this is true."
Kern told the commission that "Judge (John) Ferrin has complained to other chief judges that the incumbent chief judge has verbally abused and pressured him because of positions he has espoused." Ferrin is a liberal-leaning judge who often sides with Newman in the court's published opinions but has not taken a public position in the fight over Newman's reappointment.