A Giant Passes
I was just advised of the passing of one of the giants of the District of Columbia Court of Appeals and legal profession, former Chief Judge Theodore R. Newman, Jr.
I had the pleasure – and challenge – of appearing before Judge Newman many times.
He did not suffer fools – or lawyers with weak arguments – gladly. He was passionate, always prepared and more than willing to speak truth to power.
We found ourselves on the same page frequently when I was at D.C. Bar Counsel arguing against the position of the uptown lawyer-dominated Board on Professional Responsibility.
One of those cases is In re Miller, linked here.
It’s a case I wrote about in my law review article No Stone Left Unturned as the prime example of the inappropriate influence of bar politics on bar discipline.
Back in my day, the court panels were posted on the Thursday before a scheduled argument.
When I saw the Miller panel included Judge Newman and Associate Judge Mack, I had a rare moment of belief in the hand of an Almighty God.
He was the perfect judge to see through the Board’s ridiculously harsh position.
The most notable case I argued before Judge Newman (and, I believe, a decision of which he was particularly proud) is In re Kersey which was one of the first cases in the country to treat misconduct caused by alcoholism and substantial recovery as a mitigating factor in attorney discipline.
When the argument has concluded, Judge Newman asked if anyone from the Hearing Committee was in the courtroom.
When the Committee Chair Alan Novins rose in response, Judge Newman said
God Bless you, sir!
Alan and I said to each other as we exited that lawyers don’t get many days like these.
Another favorite story involves Clark v. United States, a court-appointed case I argued before Judges Newman and Pryor.
My argument was that the Federal Youth Corrections Act had sufficient flexibility to permit a sentencing judge to impose a split-sentence rather than an indeterminate term of up to six years.
The argument was premised on a case I had argued (and lost) in the United States Supreme Court as a young Federal Public Defender.
Judge Newman was giving me a hard time, saying that I didn’t understand the Supreme Court decision.
I was respectfully standing my ground.
After a few minutes of this, he looked down at the Supreme Court’s opinion (judges actually brought books to the bench back then) and saw my name.
He looked up at me with that Cheshire cat grin of his and nudged Judge Pryor to show him.
Having lost at the Supremes, I smiled back and said
This is my revenge
We got on famously ever after.
Rest in peace and God Bless you, Judge Newman. (Mike Frisch)