End it quickly

If the Second Circuit has any sense, an order like the following would be entered today:

Various motions are pending. One has been filed by the district judge. One been filed by the appellees and one has been filed by the appellants. They all seek further and other relief as a result of our prior order staying these cases and requiring that a new district judge be assigned.

After due consideration, we deny all the motions. We also strike from our prior order the finding that the trial judge violated the Code of Conduct. However, that portion of our prior order staying these matters and requiring that a new trial judge be assigned to these cases remains effective. Finally, we refer these cases to the Clerk of Court for reassignment to a new panel. In doing so, we note that the Court en banc has this date denied all requests asserted in the motions filed by the trial judge and the parties for rehearing en banc.

s/Jose Cabranes, Barrington Parker and John Walker

RGK

14 responses

  1. …cannot be unrung.

    Some of my clients would very much like the opportunity to apologize, call it even and everybody go home. To date, no court has allowed that to happen. There is no going back here either.

  2. I certainly agree as far as it goes, but the sua sponte removal of Judge Scheindlin from the case is still an insult, and should be vacated as well. And by the way, why was the case reassigned in the district court to one judge, and then given to yet another judge?
    As for the City’s motion to vacate, I think it’s meritless and sanctionable. It’s saying, hurry up, reverse the decision right now; we don’t need briefs and oral argument, and do it quickly, before that new mayor (who won in a landslide) withdraws the appeal. After all, we need to keep violating the constitutional rights of our black and Hispanic citizens.

    And by what theory do the police unions have grounds to intervene? Don’t they take orders from the Commissioner? What conceivable grievance do they have?

    Shameful, truly shameful.

    • Our Fourth Amendment jurisprudence is so absurd, even The Onion would hesitate before making it up. Whereas You Judges–specifically, Scalia and Thomas–maintain that they have a “considerable privacy interest” in their home mailing addresses justifying court protection, Us Lowly Citizens can be stopped and frisked on the street, have our cars searched for “driving while black,” and even let the government assay the contents of our minds.

      When it comes to “truly shameful,” the CA2 kerfluffle doesn’t even make it onto my radar.

  3. Having read the Oct. 29 transcript (see comments from yesterday), it now seems to me that the panel was really begging the City to ask it to reopen the question of expedited briefing, and it still could well do so. After all, the denial of the motion did not come from the panel, but instead from the applications Judge. The City’s attempt to take this up at oral argument didn’t seem super-effective, but it was definitely more convincing than that of the Floyd plaintiffs, who failed to adequately address the issue of harm to them with an expedited briefing or upholding the stay. The Ligon plaintiffs were a fair bit more eloquent, I thought, but I’m not sure sufficiently so. It sure makes the letter to the Court from the Corporation Counsel (Oct. 31, ECF at 238) make a lot more sense than it did without having seen the transcript.

    Anyhow, this morning’s news is the Floyd plaintiffs filed their own motion for en banc reconsideration at 10:16am (Eastern): Docket 267 in 13-3088: Motion for reconsideration by the En Banc Court of the October 31, 2013 Mandate. Unlike the Ligon motion, theirs has considerable citations.

    Michael Dorf also has a very good post on dorfonlaw about this: What Are the Remaining Stakes in the NYC Stop-and-Frisk Litigation?. It seems to me he misses the possibility that the briefing schedule will be expedited, but maybe he is much more realistic than I am. And the past posts on his blog from Prof. Kalhan are worth reading, esp. if you don’t have time to read the appeals court transcript.

    I think now we’re waiting for the City file its response to the motions for en banc reconsideration, and then for the Court to consider them. But I might have missed something.

    (Possibly the issue of expedited briefing is ripe for the Court to (re)-consider as well, since there was letter briefing on the subject (ECF at 238, 241), but I imagine since the plaintiffs chastised the City for failing to file a motion for reconsideration (which is now untimely), the City might try to file such a thing out-of-time. But I speculate, and beyond my depth.)

  4. Having read the Oct. 29 transcript (see comments from yesterday), it now seems to me that the panel was really begging the City to ask it to reopen the question of expedited briefing, and it still could well do so. After all, the denial of the motion did not come from the panel, but instead from the applications Judge. The City’s attempt to take this up at oral argument didn’t seem super-effective, but it was definitely more convincing than that of the Floyd plaintiffs, who failed to adequately address the issue of harm to them with an expedited briefing or upholding the stay. The Ligon plaintiffs were a fair bit more eloquent, I thought, but I’m not sure sufficiently so. It sure makes the letter to the Court from the Corporation Counsel (Oct. 31, ECF at 238) make a lot more sense than it did without having seen the transcript.

    Anyhow, this morning’s news is the Floyd plaintiffs filed their own motion for en banc reconsideration at 10:16am (Eastern): Docket 267 in 13-3088: Motion for reconsideration by the En Banc Court of the October 31, 2013 Mandate. Unlike the Ligon motion, theirs has considerable citations.

    Michael Dorf also has a very good post on dorfonlaw about this: “What Are the Remaining Stakes in the NYC Stop-and-Frisk Litigation?” (I don’t link to it because it puts me into comment moderation). It seems to me he misses the possibility that the briefing schedule will be expedited, but maybe he is much more realistic than I am. And the past posts on his blog from Prof. Kalhan are worth reading, esp. if you don’t have time to read the appeals court transcript.

    I think now we’re waiting for the City file its response to the motions for en banc reconsideration, and then for the Court to consider them. But I might have missed something.

    (Possibly the issue of expedited briefing is ripe for the Court to (re)-consider as well, since there was letter briefing on the subject (ECF at 238, 241), but I imagine since the plaintiffs chastised the City for failing to file a motion for reconsideration (which is now untimely), the City might try to file such a thing out-of-time. But I speculate, and beyond my depth.)

  5. Why not just do what judges ALWAYS do–do nothing–when they don’t want to do anything? The incoming administration is going to make this problem disappear. The judge doesn’t have standing because there is no penalty for violating the Canons, and in the real world, federal judges do it every day and twice on Sunday. Frankly, one remedial act is not enough to fix the Circuit’s–and our courts’–already useless reputation. Let it go.

    This bell can’t be unrung, and there is no outcome that fixes it. If CA-2 does what you counsel, they show yet again that, when push comes to shove, judges ALWAYS plop their posteriors on the scales of justice for the benefit of themselves and their colleagues. When judges show actual remorse for the CRIMINAL acts they commit in running roughshod over the constitutional rights of lowly litigants on a daily basis, they might have standing to take this one back. But if you will not act in the face of lawful objections in the form of a motion for reconsideration by someone with standing, how can you afford relief to an individual who has not suffered injury and has no standing?

    The message is clear: All litigants are equal, but some litigants (federal district court judges) are more equal than others.

    The reputation of our kangaroo courts is so tattered that even kangaroos would rightly take offense at the reference, and attempts to undo this foul would only add to the appearance of vacuity and farce. I am mindful of Justice Brandeis’s timeless dissent in Olmstead: “In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously.” Our courts would have a far better reputation if they acted consistently, and with some measure of integrity. Judge Miner got it exactly right: What you judges DO on the bench matters far more than what you say.

    It’s that “equal justice under law” thingy that always seems to trip our Imperial Judiciary up. When you make a bad call as an ump, you have to ‘nad up and live with the consequences.

  6. Pingback: A Hole Too Deep | Simple Justice

  7. Pingback: Judge Scheindlin and the Second Circuit to date. | The Researching Paralegal

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