Theodore R. Newman Jr. was unanimously reappointed yesterday as chief judge of the D.C. Court of Appeals -- but only after he reluctantly made an extraordinary public pledge to improve his judicial conduct and not to seek retaliation against four colleagues who bitterly opposed his continued leadership of the city's highest court.
The D.C. Judicial Nomination Commission, which named Newman to a second four-year term, said it was "convinced that Chief Judge Newman's actions on a number of occasions have not been consistent with the spirit of mutual respect or respect for the legitimate rights of his colleagues, which are a prerequisite to the long-range effectiveness of a multijudge court.
"More particularly, he has not always exercised the skill and temperament necessary to achieve unity and consensus, and on a number of occasions he has acted in a manner which is contrary to these goals."
Nevertheless, the seven-member panel, which has sole authority over the selection of a chief judge, concluded that "on balance, in view of his energy, scholarship and administrative ability as well as the dedication he has shown to the administration of justice in this community, he offers the requisite skills for another term as chief judge."
Newman "pledged that he would improve," the commission noted, and also said he would "work diligently to reunify the court."
"The judges, and especially the chief judge, have to make a real effort toward a new beginning, closing the door firmly and completely on the discordant events of recent years and weeks, and agreeing to future operation and mutual respect," the commission concluded. "Certainly, the court would emerge with an enhanced stature and effectiveness if that were done."
The announcement of Newman's reappointment followed a six-hour meeting of the commission Wednesday night. Newman was summoned to appear at the meeting to answer questions and personally promise not to exacerbate divisions on the court that were so deep-seated that many observers -- including other judges -- doubted its ability to function in the future.
Still, the good behavior pledge extracted from Newman and attached to what is ordinarily a routine, terse announcement raised serious questions in the minds of numerous legal observers because the politically dominated commission appeared to be setting a precedent for intrusion into the activities of the judiciary, which is in theory a completely independent branch of government.
But, one source familiar with the proceedings explained, "If the pledge had not been given last night, there would not have been a decision last night."
"It was obvious from the very beginning that [Newman] had a majority of the votes," another source said. "It was also apparent that it was necessary to have a statement [and] a pledge . . . Even his supporters requested a commitment from him."
The controversy over the reappointment of Newman, a 46-year-old moderate Republican, involved differences in personality and style, and, some said, philosophy and race. On the one side was Newman, a feisty and supremely self-confident black man, who generally believes that the court should not second-guess the authority of the home rule government.
On the other side were a quartet of Newman's generally more conservative colleagues, all of them white and three of them suburbanites, who in many instances felt the court should act as a check and balance on the actions of the mayor and City Council.
Some of Newman's critics on the court had opposed his initial appointment as chief judge, and their animosity heightened and became extremely public over the last several months. Last week, the four -- Frank Q. Nebeker, Stanley S. Harris, George R. Gallagher and John W. Kern III -- had appeared before the private session of the commission and accused Newman of "aggrandiz(ing) personal power" and running the court as his "personal fiefdom." They recited a litany of what they alleged were well-documented examples of misconduct by Newman, and in doing so, revealed spicy details of the court's inner workings.
Newman did not respond publicly to the allegations, but did defend himself before the commission. In a statement issued yesterday by its chairman, lawyer Frederick B. Abramson, the commission said that "Chief Judge Newman frankly acknowledged . . . that in the past he had been guilty of several lapses, including unnecessary outbursts of temper directed at other judges and cousel for some litigants."
However, the commission statement went further in its critism of Newman, and sources were careful to point out that what the commission concluded about Newman's actions and what Newman acknowledged and pledged to improve were different issues.
In fact, Newman did not agree with most of the assertions made by the four judges and some of the conclusions in the commission statement that appeared to echo those alegations and thus make the statement one-sided, sources said.
"There is nowhere anything saying Judge Newman agrees with everything in the statement other than what he pledges to do," one commission member said privately. "If you pick the thing [the statement] apart and look at it carefully, Newman's acknowledgment is only that he has been guilty of certain lapses, not the rest of the observations. He pledged he would improve in the respects indicated, but doesn't say they occurred."
Newman as well as the other members of the court refused to comment publicly yesterday.
The two-page statement credited Newman with meeting five criteria that the commission set as standards for a chief judge of the court, which is the District's equivalent of a state-level supreme court. They included administrative and managerial ability and experience, the ability to secure financial support for the court, the ability to identify and address problems with the court, successful use of outside monitoring groups to analyze court administration, and "ability to lead the court so as to ensure a quality product and an efficient operation."
Commission members had privately indicated before the meeting that their main concern was "how to repair the court" after the divisive proceedings on Newman's reappointment, which even though held behind closed doors were reported in detail in The Washington Post.
Sources said that during the commission's proceedings, two other candidates were discussed as possible chief judges -- Judge William C. Pryer, one of the other black judges on the court who was recommended by the four dissident judges, and Judge John M. Ferren.
Commission members also feared that divisiveness on the court cut so deep that they felt compelled to include the following warning: "The commission also expects, of course, that the chief judge will not engage in any reprisals, and that the other judges of the court will cooperate with the chief judge in good faith and without obstruction."
The commission members, in addition to Abramson, are U.S. District Court Judge Harold H. Greene, lawyers William A. Broders Jr., Charles T. Duncan and Mary Ann Stein, hardware store executive John W. Hechinger Sr., and William Lucy, secretary-treasurer of the American Federation of State, County and Municipal Employees.