In answer to Scott H. Greenfield regarding the Second Circuit’s treatment of Judge Scheindlin

Scott H. Greenfield (SHG) is a criminal defense lawyer from New York. He has a popular blog entitled “Simple Justice.”  He recently wrote about my post entitled “Cheap Shot” which dealt with Second Circuit removal of Judge Shira Scheindlin from the “stop and frisk” cases.  His post was entitled “The Elephant in the Second Circuit.”

The Context

SHG thought that I went too easy on the Second Circuit even though I was (and remain) very critical of the short order kicking Judge Scheindlin off the case. Essentially, he thought I was credulous and that I failed to address the real motivations of the judges on the Second Circuit. Wearing my blogger hat, he wanted me to honestly explain “why” the judges did what they did.

In this post, I propose to answer SHG’s “why” question because I think I now have a plausible explanation, although it is obviously speculative. But before I provide my answer to the “why” question, I reprint SHG’s post in full below so the reader has the complete context:

It appears that there isn’t a single, credible voice that wasn’t astounded and offended by the Second Circuit’s needless and brutal sua sponte attack on Judge Shira Scheindlin in the process of granting a stay to the City in Floyd v. City of New York.

Even in the New York Times’ Room for Debate, there was agreement that this was an outrageous smack, a gratuitous beating of a judge who was denied the opportunity to explain, and perhaps had nothing to explain anyway. It was seen as undermining judicial independence in a hotly political issue, but worse, an insertion by the Circuit panel, Judges Jose Cabranes, Barrington Parker and John Walker, for no conceivably legitimate purpose other than to teach Judge Scheindlin a lesson.

Why? Why would they do such a thing?

When Judge Richard Kopf posed the question at his blog, he noted that he would follow up with his thoughts after others expressed theirs. This struck me as utterly fascinating. Sure, I knew what I thought about the ruling, but the Senate never confirmed me. I eagerly awaited Judge Kopf’s thoughts:

A Cheap Shot.

As I have said before, federal trial judges know their place. We are the TTT of the federal judiciary. When the Circuit tells us to jump, we do so even if we don’t much like it. But, in return, we expect only one thing: no cheap shots.

The Second Circuit’s spontaneous decision, apparently without briefing and coming out of the blue, was factually predicated upon a “relatedness” question mentioned in the record before the Court of Appeals and in the footnoted NYT article referred to by the Circuit. But, if that was really the reason for the trial judge’s removal, the decision was both wrong, and, worse, unnecessary.

No question about it. But that’s easy. Everyone agrees that this was a cheap shot, a low blow, a needless, gratuitous smack. But why? The three judges on the panel are neither stupid, inexperienced nor impetuous. They did not do this thoughtlessly. This was deliberate, and they certainly knew the reasons why not to do it, and did it anyway. So why?

Unintentionally I am sure, the panel of highly regarded and very smart judges on the Second Circuit that too hastily disqualified Judge Scheindlin, herself a highly respected trial judge, fractured the unwritten but critical social compact between federal trial judges and federal appellate judges that should bind those judges together as they seek to fulfill a common purpose. In short, “eating your young” is not a good way to foster collegiality.

Unintentionally? Seriously, Judge? Are you really saying that?*

Frankly, this whole debacle is just mystifying to me.

You lost me. This was where the rubber meets the road, where the question of how far out on a limb you would go to speak truth to power would be answered. I hoped for an answer, because without it, I’m left to my own devices, my own fertile imagination.

While you’re no “right-wing nutjob,” you also do not see the system through the eyes of a criminal defense lawyer. It was important to know what your eyes saw so that those of us who sit at the table farthest from the jury can learn whether our greatest fears are justified.

To say you’re “mystified” is a cop-out (no pun intended). Some have speculated that this ruling comes from a “reliably right-wing panel” sending a message to a judge perceived as insufficiently kind to law enforcement and unduly inclined to stymie those who elevate control over civil rights. Are they wrong? Are they the nuts?

Let’s get real here: Judge Scheindlin is the government’s worst nightmare. She gives the defense, the accused, the black, the Hispanic, a fair shake. She has demonstrated throughout her career that she will not let agents or assistants roll over the Constitution. They despise her for not being a team player, and dread a case getting sent to her courtroom.

As for Local Rule 13, the related case rule, she did nothing that isn’t done daily. Worse yet, most of the time the related case rule works to the government’s favor, as judges who sign search and wiretap warrants get the cases when the takedown comes, making it essentially impossible to obtain neutral review of their grant of the warrants. The government survives on this ploy, and we all know it. This isn’t about the Circuit panel beating up on the local rule.

So why? We all agree that the panel judges aren’t a bunch of clueless dopes who didn’t get what they were doing, or didn’t appreciate (in this case in particular) the significance of their ruling in political terms. This case is huge, millions of New Yorkers huge, a mayoral campaign huge. There is no way they didn’t appreciate it. There is no way you don’t appreciate it.

To say you’re “mystified” is to hide. While it’s fair to say you didn’t have a drink with Jose Cabranes and chat about his purpose, it’s not fair to leave it at “mystified,” as this goes to a core value of integrity of the judiciary in general and the Second Circuit in particular.

Why, Judge? Why?

And you came up with nothing.

* Subsequent to posting, it was suggested that I’m being “unduly harsh” on Judge Kopf. I hope not, as that is not at all my purpose. Rather, I am of the view, based on his writings, that he won’t be put off by my lack of obsequiousness; as I first wrote about engaging Judge Kopf, it’s awkward. While I won’t allow him to be attacked here, I hope that he is open to challenge in his blawger bathrobe instead of requiring the formality of his judge’s robes.

Whether I’m correct will be seen. But I add this to point out that I don’t question out of disrespect, but just the opposite. I hope this doesn’t offend the judge.

Scott H. Greenfield, The Elephant in the Second Circuit, Simple Justice  (November 5, 2013).

Kopf’s Answer to SHG’s “Why” Question

I will be direct and will try not to equivocate, but understand, please, that my answer amounts to a guess.  I will outline my thinking and then answer SHG’s “why” question. Here goes:

*After the post that SHG criticizes, I learned of the following article: Katherine Macfarlane, The Danger of Nonrandom Case Assignment: How the Southern District of New York’s ‘Related Cases’ Rule has Shaped the Evolution of Stop-and-Frisk Law, (LSU August 22, 2013).  I called my readers’ attention to this post in the comment section. See, e.g., comment in response to Orin Kerr, November 4, 2013 at 5:55 am.

*Unlike the short and unexpected order removing Judge Scheindlin, Ms. Macfarlane’s article is a public and intellectually coherent analysis of the “relatedness” question in the precise matter before the Second Circuit and it presents an arguable case for a lack of impartiality on the part of Judge Scheindlin in the precise matter before the Second Circuit. McFarlane’s 45-page article appeared shortly (2 months) before the Second Circuit issued the surprise ruling. It was not cited by the Second Circuit, but the Second Circuit did cite three sources (newspaper articles) cited by McFarlane.

*After the post about which SHG is critical, I received an unsolicited e-mail from MaFarlane on Sunday, Nov 3, 2013 at 5:13 PM. She kindly gave me permission to reprint the contents of it on Monday Nov 4, 2013 at 8:57 AM. I did so on November 4, 2013 at 10:43 am. See here. To make things easy, I reprint the e-mail again, to wit:

Dear Judge Kopf,

In light of your recent blog post, I thought you might be interested in my attached article, posted on SSRN in August, and accepted for publication in the Michigan Journal of Race & Law in September. It’s about the SDNY’s related cases rule and its role in stop-and-frisk litigation. Curiously, three of the non-legal sources I cited to–an article by Jeffrey Toobin in the New Yorker, an article by Joe Goldstein in the New York Times, and an article by Mark Hamblett in the New York Law Journal–were also cited by the Second Circuit in its recent order kicking Judge Scheindlin off the stop-and-frisk cases. The “appearance of impartiality” idea also pops up in my article. This is either an incredible coincidence, or else, a clerk read my SSRN post. Either way, I hope you find my article of interest.

The Second Circuit’s decision to reassign the cases makes no sense to me, as Judge Scheindlin merely followed the local rules. As to whether the local rules invite manipulation of the case assignment process is an entirely different question that my article attempts to tackle.

Best regards,

Katherine A. Macfarlane
Teaching Fellow and Assistant Professor of Professional Practice
LSU Paul M. Hebert Law Center

*While Macfarlane’s piece provided a detailed justification for a fair critique of the “related” case rule and Judge Scheindlin’s use (and possible abuse) of the rule, Scheindlin’s conduct had long been the subject of debate in New York legal circles.  As one commentator to this blog later put it, “In New York legal circles (especially around Foley Square), . . . Judge Scheindlin’s abuse of the related-case protocol and her interviews raised serious partiality concerns [and were well known]. The press pieces [Macfarlane] cites were widely read and discussed at the time of their publication, especially the NYT piece about how Judge Scheindlin leveraged Daniels to get not only Floyd but also Davis and Ligon.” Anonymous says: November 5, 2013 at 12:09 pm.

*The coming New York mayoral election threatened to moot the appeal before the Second Circuit and deprive the Second Circuit of a chance to flog Scheindlin and the “related” case rule.

*All of the judges–from Judge Shira Scheindlin to the appellate judges, Judges Jose Cabranes, Barrington Parker and John Walker–are highly regarded.  See, e.g., Almanac of the Federal Judiciary–a rich (and expensive) resource providing detailed accounts of what knowledgeable lawyers say privately about each federal judge. (Federal judges typically deny reading the Almanac but don’t believe them.)  In short, I remain fully confident in the bona fides of all the judges involved in this sad story.

*The answer to SHG’s “why” question is this:  The appellate judges were furious and thought they needed to send an unmistakable message. But it is not the message skeptics think it was. The removal of Judge Scheindlin was driven by a sort of rage over the perceived manipulation of the local rule on “relatedness.” It was intended as a deterrent to any trial judge, including especially Scheindlin, who games the system by screwing with the Holy Grail of judicial neutrality–the random assignment of cases. I suspect that indignation had been bubbling under the surface at the Second Circuit for a very long time and it erupted without warning, much like a volcano, under the increased pressure of the “stop and frisk” cases that were likely to become moot. The intemperate and easily misunderstood order of removal was not, however, borne out of a Machiavellian scheme to take sides in the litigation before the Second Circuit or to silence Judge Scheindlin (or any other federal trial judge) on the merits of civil rights cases “properly” before her but yet to come.

*In sum, genuine anger over Judge Scheindlin’s use and perceived abuse of the “relatedness” rule rather than some hidden calculation worthy of the Prince is the solution that best fits Occam’s razor.

RGK

17 responses

  1. Scott, loved the pure honesty and eloquent articulate presentation of your post.

    Judge, I guess I’ve carried a question for a while. We’ve read about Judges and lawyers getting disciplined for executing their free speech a little to freely in the form of publicly criticizing courts and judges. You have inferred (as I’ve interpreted your posts) that you have less to lose that way and have been emboldened to be unbridled regarding the truth due to some measure of invulnerability that comes from senior status. I’ve assumed that to be true because frankly your blog gets into some criticisms that would – prior to blogging – have been viewed by some as “not judge-like” since Judges are not usually publicly forthcoming and open outside of their opinions.

    Scott’s post made me wonder anew: “what restraints do you observe, if any, on expressing truth in your blog”? Political correctness? Fear of Reprisal on claims of breach of Judicial ethics? Judicial ethics themselves that you feel you should or must otherwise observe?

    I realize this is probing and you need not answer. My curiosity is not idle. The answer might help me to interpret your posts. Kindest regards. Dean

    • Dean,

      A very recent law school graduate, who has an interest in the intersection of law and the Internet, asked me essentially the same questions via e-mail. We have had a written exchange on those points and related matters. He is going to see if he can get some significant electronic media source (like Slate) to print an article he will write about our exchange. He has had success in the past finding electronic outlets that are interested in his written work.

      Since I believe my young correspondent will address your questions about my views of the propriety of judicial blogging from the written exchange he and I had, I don’t want to “scoop” him. If he doesn’t get his article published, I will happily answer your questions. I will try to remember to highlight the kid’s article if and when it is published. If you don’t see something like that on this blog over the next several months, remind me and I will address each of your questions.

      All the best.

      RGK

  2. Judge,

    I sincerely appreciate your reply to my post. As I wrote earlier, this is all rather awkward, how “plain” a lawyer can be in engaging with a sitting judge, even though we both may be blawgers. I hope I haven’t crossed the line.

    With regard to the answer, it has raised some additional questions which I’ve posted at SJ. I hope that the totality of this discussion will serve to illuminate the interesting and problematic questions arising from the panel’s ruling.

    Thank you, and my best regards,
    Scott

    • Scott,

      You can’t cross the line when I am online. As a blogger, I am not entitled to “teacup” treatment. (You will appreciate that formulation.) That said, you have been perfectly fair and relatively gentle nonetheless.

      You have stimulated my thinking. I am extremely appreciative.

      Thank you. All the best.

      RGK

    • It shouldn’t be awkward, Scott. Judges put their pants on the same way we do, one leg at a time. As Professor Carl Bogus put it, there is a culture of quiescence at the bar, infecting judges with what pundit Max Boot calls “gavelitis.”

      As Judge Miner suggests, the bar has the duty to say that the Emperors have no clothes.

      • Ken, I’m an old trench lawyer. As much as I may fight the government, I still adhere to the norms of respect in my communications with judges, and in particular Judge Kopf due to his integrity and willingness to engage. I both appreciate and respect him for that, even though I may disagree with him at times.

        While the tone of the blawgosphere is generally a bit rough and free-wheeling, and some us tend not to be very sensitive toward those I like to call the “teacups,” it doesn’t change the fact that I am engaging with a judge, and I plan to maintain the level of respect he is due regardless of anything else.

        That’s just how old trench lawyers are. It doesn’t stop me from expressing my thoughts, but I hope to express them without offense.

  3. On an unrelated note: thank you for citing the Almanac of the Federal Judiciary . That’s not something they tell us about in law school, and is an invaluable resource for a law student looking for scant information on judges. And it’s available on Westlaw through my law school!

    Finally, a useful reason for law school being so expensive.

  4. Rich, in the interim I have read Prof. MacFarlane’s article, which is very interesting and well written. As you say, it is a vastly more coherent explanation of why the Second Circuit might have done what it did (a subject on which I express no view given that I lack enough context to be sure of myself). However, before the furor of this dies down, someone ought to take seriously her proposals, particularly letting determinations of “relatedness” seeing the light of day and becoming the subject of motion practice. That would be to everyone’s benefit and would allow for a principled basis for appellate review if indeed it were necessary (I suppose this would have to come by way of writ or something).

    Judge shopping has been sport for a long time, of course. In California state courts (at least when I practiced there), each side actually got one peremptory strike of a judge, so if you drew a judge who was dead set against you (or so you thought) you could exercise it (before the case got rolling, of course). Another game, though one that had ended by the time I practiced, was that in federal court in the E.D. of California the cases were assigned on a straight rotation, and the clerk’s stamp of which one was going to be the next up was visible to anyone who walked in, and experienced lawyers knew the order in which the rotation went. So if it was set to a judge they didn’t want, lawyers would stand in there, chat up the clerk and other court personnel, hang around and wait for another person or two to come in a file, and then when it rolled around to the judge they wanted say to the clerk: “Oh yeah, I almost forgot, I guess I had better file this while I’m over here.”

    Unsurprisingly, the clerks eventually figured it out.

    • Pat,

      As usual, you are spot on. Among other things, you write that: “before the furor of this dies down, someone ought to take seriously her proposals, particularly letting determinations of “relatedness” seeing the light of day and becoming the subject of motion practice. That would be to everyone’s benefit and would allow for a principled basis for appellate review if indeed it were necessary . . . .”

      I could not agree more. I will do some thinking about this for the District of Nebraska. I serve as the Chair of our Docket and Local Rules Committee. Our last amendment cycle just concluded, but perhaps we can consider your suggestion when we consider amendments next year.

      One final point is worth noting. It is vaguely ironic. I know you know, but, for others, it is this:

      Every local rule used by a federal district court must first be approved (or not) by that federal trial’s court Circuit Judicial Council, an entity functioning under the auspices of the relevant Court of Appeals. Circuit and District judges makeup the Circuit Judicial Councils. It would be interesting to be a “fly on the wall” when next the Second Circuit Judicial Council meets.

      All the best.

      RGK

  5. Interesting….I can’t help but think that it’s rather silly–as you have mentioned that most bloggers in debate with you, over one topic or another, have been “relatively gentle”–for blog comments/debates to be taken out of context or offensively; it’s about as juvenile as arguing with someone over facebook chat or “trolling” someone on a forum. Great post and I’ll be sticking around to see if that young lawyer can get his piece published in the coming months.

  6. Dear Judge Kopf,

    I noticed that you referenced our email conversation in the comments section of this most recent (and excellent) post. I sincerely appreciate your carefulness as I continue writing and looking for the right outlet for the piece. I’ve frankly avoided Slate because I think it deserves better (soft spot that I do have for Slate aside). I’ve similarly avoided Salon.

    Because I still don’t have a precise timeline or locus for publishing, among a few other reasons, I wouldn’t want to function as any kind of censor on how you respond to others, especially on your blog. In fact, I think it would counteract the spirit of the piece. Of course, it’s your call, but I wanted to send my thanks and blessings on the matter.

    ‘The kid,’ Sean

    • Sean,

      Take your time. There is no hurry. If you get the article placed in the next several months that is fine. Sorry for the reference to the “kid.” I assumed you are, but I never asked your age. Anyway, at my age, everybody seems to be young.

      All the best.

      RGK

      • Dear Judge Kopf,

        Sincerely appreciated, and I didn’t mean to suggest I’d taken offense to being ‘the kid.’ I’m surely a greenhorn – and would continue to be grateful for your attention even if I were not. I’m a big believer in separating the ideas from individuals, anyway.

        I’ll be in touch.

        Best,
        Sean

  7. If the notion is to attack a rule then attack the rule, not the judge. Pent up frustration at a systematic problem (if indeed there is one) is one thing. It is quite another thing to lash out at a judge (who applies that rule) in a manner that appears to be designed to undermine that judge. Will this decision strengthen the public’s view of the legitimacy of the courts, or give fodder to those who believe that judges are outcome oriented (be they at the district or circuit court level)?

    • John,

      Thanks for your important point. The public is,indeed, the loser!

      By the way, I will get to the “motion in limine” soon.

      All the best.

      RGK

  8. Scott hit the nail on the head. I don’t think a Blackshirt has ever made a more brutal tackle. Every criminal or otherwise nefarious enterprise–as you know, my position is that our federal court system has devolved into one, with the illegitimate purpose of establishing and maintaining a tyrannical and despotic judocracy (Judge Bork’s word)–has a “code of silence” that keeps members from airing the dirty laundry of their co-conspirators.

    By way of example, whereas I can get 100 out of 100 lawyers to say that it is wrong for a judge to sit in judgment of her own case, a judge would rather gnaw his freakin’ arm off than say it. When judges sit in judgment of fellow judges, they ALWAYS position their pump posteriors on the scales of justice, invariably siding with your wayward colleagues. This is what Miner, Bork, Kagan, Posner, Kozinski, and others have been saying, albeit more subtly.

    Is collegiality so important that it requires sacrificing one’s personal character? If it is, the price is too dear.

    You pulled a punch here, and it is obvious to everyone. Scott read you the riot act for it, and rightly so. This controversy is more interesting (and more likely to precipitate honest criticism–because it is an internecine one–Judge S. is, after all, one of yours–but this is a venial sin, compared to the open and serial commission of felonies by your learned brethren.

    Still, in the kingdom of the blind, the one-eyed man is king. Retired Judge Sarokin actually had me tossed off the HuffPo for my trenchant critiques of our judocracy. I appreciate your not demanding the “teacup” treatment. I’ve never had a judge even hear my cries before.

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