This is Bloomberg Law with June Brusso from Bloomberg Radio.
At ninety six years old, Judge Pauline Newman is the oldest federal judge in the country. Newman is set on the Federal Circuit Court of Appeals for almost forty years, and she refuses to retire or even take senior status.
I thought, what what will I do now? I don't want to be a litigator. I don't want to be a mediator. I'd rather decide rather than mediate, as many judges do. If I had a family by that time, I would have had who knows great grandchildren, I suppose, but I didn't.
Take that path. I don't know why, but I didn't.
Federal judges have lifetime appointments. But the Chief Judge of the Federal Circuit started an investigation into Newman's fitness to remain an active judge in March, and filing alleged that Newman has shown significant mental deterioration since suffering a heart attack in twenty twenty one and can no longer do the job. It's become a very nasty and personal dispute, and Newman has fought back by suing her colleagues accusing
them of violating the Constitution. Newman is known for her descents, having written more than three hundred in her career, and she believes that's why her colleagues are trying to get rid of her.
It may sound ponderous, but I think the nation needs my voice.
I think that if the judges on this court are willing and more than willing to push me out in order to get me out of the way so that no one says that they've made a mistake, that I need.
To be here to countermand.
That me as Bloomberg Law senior reporter Kelsey Griffiths, who interviewed her, how did this become a nasty battle to get Newman to retire?
So this started about four months ago or so. It began with the chief judge sitting Newman down and saying, luck, we think it's time for you to retire. You should consider taking senior status. And then basically Judge Newman refused to go quietly, as she says in her own words,
and that's when things got complicated. Typically, judicial retirement decisions are something that are taking care of behind closed doors, and to my knowledge, we've never seen a fight like this at least in current memory, where a judge is being encouraged to retire even though she has a lifetime appointment, and if she feels like she's not ready to go, there's not a lot her colleagues can do except started
the process that Chief Judge Moore started. So under this process, Chief Judge Moore launched additional Council investigation into Judge Newman's fitness to remain on the bench, and that investigation is ongoing, and there.
Were attempts to get her to retire without any fanfare. Tell us about the visit by her fellow Judge Alan Lourie.
So, Judge Lourie visited his neighbor Polly Newman in her Watergate apartment building. They live in neighboring towers in March. He had allegedly been dispatched by the Chief Judge of
the Federal Circuit to deliver a message. And it hasn't been confirmed that the Chief Judge sent him on this errand, but we do know that he later reported the contents of this conversation that he has with his ninety six year old neighboring colleague, because it shows up and the Chief Judge's reports later So Judge Laurie comes to Judge Newman's house, they walk inside, they sit on her sofa,
and he tells her, you need to retire. Retire now, and Davy reputation, savior, legacy kind of go out on top. And now this was a directive that the Chief Judge had delivered a couple days before in a meeting with two other judges, and they were trying to convince her to retire. So I think the thinking behind this is that Judge Lourie is someone who Newman knows socially as well as professionally, and it might be a little more well received coming from him.
That obviously didn't work. In your stories, you've written about some of the evidence that the Chief Judge has about Newman's fitness.
So the Chief Judges documents alleged that Judge Newman allegedly had a heart attack in the summer of twenty twenty one. She allegedly was hospitalized and got heart dent surgery, and she also allegedly fainted following an oral argument session at the court. All these things are documented in the Chief Judges documents that she's released in this probe, and she's also interviewed some unnamed court employees and observers who supposedly
corroborate these things. However, Judge Newman completely rejects these accounts and says they're kind of a fishing expedition to pressure her to retire and to sort of smear her reputation. So without seeing documentation on the other side, it's kind of hard to say who's right.
It seems really odd that you know, she would dispute something like fainting on the bench since there were other people there who talked about it. And also, isn't it easy enough to prove or disprove whether or not she had surgery for a standing?
So I think to a casual observer, it does seem like a relatively easy question to answer. For Judge Newman at ninety six, someone who's been in the legal profession for a really long time, she's looking at this with a very critical eye, and she's saying, I'm being to prove a negative. That's not something you can make someone do in a court case. So she feels like she's being put in a really untenable position to offer evidence that she doesn't have.
So you sat down with Judge Newman, how did she strike you as far as you know her communication abilities and her demeanor.
So I visited Judge Newman's chambers Friday, June twenty third. I sat down with her for a little over an hour, and she struck me as remarkably lucid. I think she
seemed very well put together. She was walking around her office and shuffling large binders, pulling out chairs and that sort of thing without any assistance, and she didn't hesitate to answer any of my legal questions that were actually in quite complicated topics with a level of clarity that you know I frequently encounter in big law partners or people who are at the top of their field.
And yet there are accusations in the committee documents that she had bizarre and nonsensical conversations at times.
So I think some of the most shocking allegations in the Chief Judges documents are related to certain conversations around a employment dispute with someone in Judge Moore's chambers who eventually left for another part of the court, and an incident involving some IT staffers who are trying to teach her how to make her own financial disclosures. After that employee left, My assessment of those two events and how they kind of played together is that Judge Newman felt
like she was backed into a corner. She didn't have the resources that she typically had to deal with routine things like filing financial disclosures, and at the time she didn't have the secretary's computer that is typically available to her and to the staffers who know how to operate it. So I think she felt, like I said, cornered, and like she was being forced to complete a job that is not typically hers to complete, and with resources that
she felt she was lacking. So I think that led to these sort of explosive exchanges that are outlined and the Chief Judges documents about the bizarre, nonsensical and paranoid conversation. Now, to be fair, Judge Newman doesn't dispute that does dust up with it happened? She said that harsh words were exchanged because she was very flustered and very angry about the situation.
She is ninety six, she's been on the bench for forty years. She can retire with senior status and still here cases get full salary. Why is she resisting taking senior status? Did she explain that's.
Something I asked her about and she said simply that the chief judge is the one who controls the caseload once a judge takes senior status. So she's afraid that if she retires, she will completely give up her ability to have any level of activity on the court. She believes that the chief judge would simply refuse to give her cases.
The bigger question is why doesn't she want to retire at the age of ninety six.
Right, That's something I asked her about too. She told me that she has dedicated her life to the law, particularly to patent law, and she chose not to have a family. She themed at me and then laughed when I suggested that maybe she has hobbies that she would like to pursue. You know, is there anything outside of her life at the court that she would like to
make time for? And she said, no, this is my life and this is what I've dedicated my life to, and so I want to stay here as long as I possibly can.
She even refused to cooperate with the investigation. You know, she says that she's fit. Why didn't she cooperate with the investigation?
That was another as that was really puzzling, as well, and her answer is that, on one hand, she feels like the Chief Judge was sort of stacking the cards against her. She felt that even if she proved that she didn't have a heart attack or he's alected health issues, that the Chief Judge would never be satisfied until she
had effectively sidelined Newman. As I wrote in the story, Newman is a prolific dissenter on the court, and she told me that she believed her colleagues, including and primarily Chief Judge More, are just tired of dealing with that level of scrutiny.
The investigation has morphed from one into her fitness to be an active judge to something else. What does it turned to?
That's right, So, initially the probe was focused on trying to prove certain details related to Judge Newman's health. Now that Judge Newman has repeatedly refused to offer the details that they've asked for, they've simply backed up the investigation, now focusing on the question of whether Judge Newman had a good reason to not offer up those details in the first place. If she is found to have obstructed the investigation, then that could be cause for a finding
of misconduct. It's also worth noting that the committee investigating Moore's fitness is comprised of her colleagues, so that's something that Judge Newman has asked to change. She wants another judicial counsel in another circuit to evaluate this with fresh eyes.
So she sued in DC Federal Court. Who did she sue and where does that fit in with the committee's investigation.
Judge Newman sued Chief Judge Moore, who is heading up the investigation into her fitness. Judged Richard Toronto and Judge Sharon Pros those are the other two judges that are on the three judge committee investigating her fitness. The lawsuits is really Judging new Woman's attempt to strike back at these colleagues that she feels are forcing her into untenable positions, and she's trying to get more eyes on this internal dispute.
She's repeatedly asked for the documents in this closed door probe to be made public, and she's also asked Chief Justice Roberts at the Supreme Court to take notice of this dispute and transfer it to another circuit's judicial council.
This is certainly drawing attention to lifetime appointments for federal judges and the consequences. And there are nineteen full time federal judges who are eighty or older.
That's right. I think Judge Newman's story is a really great example of a conflict that we haven't seen before. We rarely see where a judge chooses not to go quietly and not to end their ten of their own accords. So I think this could potentially tee up other fights where other judges, in our aging judiciary decide they also don't want to go quietly.
I mean, she is a formidable woman. She was a former chemical scientist and the first direct appointee to the nation's top patent court.
That's right. She's also a pilot and a one time race car driver, so Judge Newman has had a lot of life experience. She was also a bartender in France for a while, so I think she has added patent judge as her crowning achievement and she is not going to let go of that easily.
And up until now, she's had a sterling reputation as a patent judge.
Judge Newman is known in the patent bar for being one of the founders of the modern day patent system. She was the Federal Circuit's first direct appointee when the Court in its modern iteration was created during President Reagan's term. So I think, you know, she's kind of been here from the beginning, and it's really sad for a lot of folks in the space to fear her story kind of take this turn.
Thanks so much, Kelsey. It's wonderful that you could sit down and talk with her and get her side of the story. That's Bloomberg Lass Senior reporter Kelsey Griffiths. The controversy over the announced merger of the PGA Tour with Saudi owned Live Golf moves to the Senate next week as two PGA Tour officials testify. The title of the hearing says it all quote the PGA Live deal implications for the future of golf and Saudi Arabia's influence in
the United States. Lawmakers have demanded investigations into the deal, citing potential antitrust concerns, as well as accusations of human rights abuses in Saudi Arabia. Others have echoed the families of the victims of the September eleventh terrorist attacks who've long said that Saudi Arabia has fed to fully answer questions on any role it might have played. Joining me is Martini Dell, co chair of the Sports law practice
at Gulston and Stores. So there was a disclosure of about five pages long of a framework agreement between the PGA Tour, the Saudi Public Investment Fund and the dp World Tour. I mean, what does it tell us? What does it disclose?
So it discloses a framework from thirty thousand feet up which has very few details. If you want to learn more of the details, then the thing to do is to see what the PGA submitted to the Senate and in particular the Senator Bloomenthal, who is conducting an investigation
I think starting next week on July eleventh. And that tells us a little bit more about the details, but still not a lot, because they're trying to keep the details somewhat lose so they can go with the flow, if you will, and maybe try to avoid any antitrust consequences.
But does it tell us about the leadership structure.
What it says is that the PGA chief will continue to be the head of the new combined group, but the chairman of the PIF will also have the leadership function as chair of the new entity.
The big thing that we heard about is that, you know, the Saudi Fund is going to invest a ton of money into golf into this organization. Are there any parameters for how much it's going to invest.
Not according to that five page summary, it's just going to be an investment by the Saudi Investment Fund. Not clear if there are any bounds on it. Not clear what limitations Saudis will put on the investment. Not clear what limitations the PGA would want to put on the investment, assuming of course that it's all not challenged by either the US regular or the EC regulators. Because remember there's also the European Tour which is getting thrown into the mix here as well.
It seems like it leaves out more than it puts in. Why even put out this framework agreement?
So that's a great question. I think part of the answer there is the parties wanted to resolve the litigations that were between them at that point. PGA announced it was very costly, of course, that's what litigations are. The Saudis didn't want the litigation to take discovery of some of the investments of the Saudi Investment Fund, the structure of the Saudi Investment Fund. They just didn't want public disclosure of this. So it is very important for them
to end the litigation. That is one of the details that is made clear in the five page summary. The litigation will end and now it has in Aside from that, they wanted to discuss a framework for combining the various tours in some form. Not clear what form that will be, but let's have a form. And that's what's going to lead to antitrust problems down the road.
The Justice Department was looking at professional golf before the deal was announced. Does this in many ways appear to strengthen antitrust concerns?
I would think so, you know, if the Justice Department says GPGA, we're going to look into you for monopolizing the professional golf industry, what would cause the DOJ to back away from that now and back I think, as you correctly put it, it's hand would be strengthened because if you have a putative monopoly in the PGA beforehand, now with PGA controlling both the Live Tour and the European Tour, it's a greater monopolist with more control over
the marketplace, the ability to set prices and control output.
And also Live was suing the pace alleging anti trust violations. So a major part of this new entity has said there were anti trust violations even before it became a larger entity. How do they back away from that? Now?
Money talks, nobody walks, They don't back off of that. I'm sorry to be glib about it, but you know, the Live Tour now says, oh, well, you know, what we did for litigation purposes doesn't matter now that we're in a business relationship. But of course it matters. And the questions the justice part will have to look into is how will this affect consumers, how will this affect players, and how will this affect media contracts out there and others.
We look at the different constituencies who are likely to be affected. If this is a merger of some sort, and you know, we don't have to focus on the term merger to call it a merger. If there's no more competition for the PGA because it's eliminated computative competitors, then we have at the facto merger.
I understand that there are almost no outside bankers or lawyers involved in the negotiations up until the five page framework agreement, and we had j. Monahan, who is the PGA Tour Commissioner, saying that the deal will quote take the competitor off of the board, seemingly saying, hey, doj there are anti trust concerns here? I mean, do you think they would have done better if they had at least had some anti trust lawyers there.
He wouldn't have made so candid a statement. Yes, I think he would have done better had he been counseled by attorneys on this. I mean, basically, as you notice here, J. Monahannis said, hey, look at us. We've gotten rid of the competition, which is what anti trust is abound. You know, are we getting rid of the competition in order to increase prices or reduce output out there? And you know there are two overriding antitrust concerns. One is is this
going to affect professional golf in an adverse way? And how will the players be affected? You know, will the pots be reduced or will they be kept below market size because there's nobody competing for the player's attention anymore. There are side issues, of course, such as the PGA players who turn down the live bonuses and are now ruining that fact now that they're combining with the live tour.
But that's not an antitrust concern. The anti trust concern is how will these players be affected in the long term. It's an employment matter. And the second is how will fans and the media be affected in the long term. We'll receive reduction of output or output at least below what the market otherwise would bear.
The deal could be reviewed, sorry, the deal could be reviewed by SYPHIUS, which is the Committee on Foreign Investment in the US. It analyzes mergers regarding potential threats to the nation's security. I mean, on the surface, it may not need to investigate this, but then there are always details that it might.
So I think June that's a really fair point. I mean, we're going to have a lot of investigation. Senate Antitrust Subcommittee of the Judiciary Committee is going to look into this. I believe Senator Bloominghoal is tst scheduled hearings for next week on this matter. We can have SIPIUS look at it, because now you're having a major country's wealth fund invest in a uniquely what was formerly at least the uniquely
American event, namely the PGA. With the addition of the European Tour, we're going to have the European regulators look at this as well. You know, how is this going to affect the European tour that's now being thrown into this PGA Saudi or PIF fund merger. So we have different committees looking at it. We have the Justice Department looking at it, and maybe we'll have some states attorney generals looking at it under the many Sherman Acts in various states.
Marty, I mean, can the Senate do anything really to stop this deal?
The Senate can enact legislation which either can facilitate or make this more difficult. So let's go back historically, and I'll thank you, back about sixty plus years to the merger of the AFL and the NFL to Big Football powers. To have that merger go through required a law, and we saw that in the Sports Broadcasting Act of nineteen sixty five that facilitated the merger because it exempted it
from antitrust scrutiny. We could have that here. Unlikely given the current frame of mind in Congress and the Justice Department, that Congress would pass a law to exempt this merger from the antitrust laws, but they could also voice their concern about it and send that concern to the Justice Department, which would create even more pressure on the Justice Department to bring a lawsuit to stop the merger from proceeding.
Some lawmakers have also threatened to strip the tour of its tax exempt status. So problematic would that be?
Ye, well, it could be problematic. You know, a number of sports league started off as not for profits to gain some tax advantages, and then many of them switched to being for profit corporations. I don't know enough about the internal workings of the PGA to tell you whether loss of the tax exempt status would create a real problem or just create a need for restructuring in a way that would shelter some income from taxation and not other income from taxation.
So the PGA Tours Policy Boards signaled a new phase of negotiations. Management, with input from our player directors, has now begun a new phase negotiations to determine if the Tour can reach a definitive agreement that is in the best interest of our players, fans, sponsors, partners, and the game overall. What's happening right now? Do you think it's significant negotiations or they're just hammering down details.
So from what I've seen and heard, I don't see anything going on right now. I think everybody's sort of in a wait and see mode. I don't think the PGA wants to take two precipitous a series of steps before they know what Congress will do, and what Congress wants to do that is, and what the Justice Department will do. The Justice Department has said it's investigating the announcement, and I think that will lead to some discussions between the PGA and PIF on the one hand, and the
Justice Department on the other. There might be a path to facilitate this merger, maybe not calling it a merger. Maybe it'll just be an investment by the Saudiast. Maybe the live tour will be spun off. You know, we see lots of times mergers that the Justice Department or FDC says, you know, will approve it if you get rid of certain of your assets that may be one of it, or they spin off your PA tour from this merger. So there are lots of possibilities out there.
I don't see anything right now that's coming to the fore in terms of these new so called negotiations, because I haven't heard of any going forward right now.
The Policy Board has to approve the deal. Is it possible that with the some of the players on the Policy Board that there'll be enough opposition to the deal or you think the players will fold?
So, you know, we've seen a little bit of that. Rory McElroy, for instance, who is a ardent supporter of the PGA action against Live and has now said, well, maybe this is a good thing. Maybe it'll pour more money into the tour, maybe it will benefit the players more.
So.
I don't see that the players are going to be an impediment there. The independent members of the Policy Board are really those who negotiated this deal with the pif they're likely to vote in favor of it. Again, I think it's a very loosey goosey arrangement right now, because people are waiting to see what the Justice Department says, what Congress says, and perhaps what the EC will be saying if it weighs in on this as well and go to a structure from there. I think it's unlikely
that this will sort of die on the BUND. I think there are different ways in which this can take a form and shape that may pass antitrust mustard.
So, speaking of antitrust, why is the baseball antitrust exemption still being litigated in any form?
So that's a great question, And the reason I'm laughing is because it makes no sense whatsoever. But it's encapsuled in a trilogy of US Supreme Court cases, the last one being Flooded versus Qune in nineteen seventy two. So every so often someone comes around with the bright eye, bushy tailed idea, let's challenge the baseball exemption because maybe with a passage of time, people will see how silly
it actually is. And I'm sorry for being so direct, but it didn't make any sense in nineteen twenty three when the Supreme Court announced it, because baseball was involved in interstate commerce back then. It is more involved in interstate commerce now than it was in nineteen twenty three. But that's the antecedent of the baseball exemption. So going to your question, what planiffs are looking for is a
hook maybe we could challenge it in some way. So this is minor league baseball saying that maybe its relations with Major League Baseball should be outside the scope of the antitrust exemption. The district court in the Southern District did not see it that way. The Second Circuit did not se it that way. It's a stretch by any manner,
shape or form. The last twenty years of jurist prudence shows us that courts have taken a more expansive view of baseball exemption, so that it affects almost any aspect of the business of baseball, and they're not limiting it in any manner, shape or form. We're going to need the Supreme Court to step in if this is ever going to be changed, and frankly, I don't see that likely.
This Court has changed a lot of other things, so we'll wait and see. Thanks so much, Marty. That's Martini Dell, co chair of the sports practice at Gulston and Stores. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on
our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, Slash podcast Slash Law, and remember to tune into The Bloomberg Law Show so every weeknight at ten pm Wall Street Time, I'm June Grosso and you're listening to Bloomberg