What do you think about the Second Circuit’s removal of Judge Shira Scheindlin?

Judge Scheindlin is a New York federal trial judge who has taken senior status.* She was handling high profile cases involving New York’s “stop and frisk” practices. She issued an opinion providing remedial relief and an injunction to the folks who were challenging the police department’s practices, and up the case went to the Second Circuit. On Thursday, without ruling on the merits of the appeal, and acting on its own without a request from the appellants, the Second Circuit removed Scheindlin.  The Court stated that the trial judge had violated the Code of Conduct and failed in her responsibility to uphold the appearance of impartiality (1) because of her statements to the parties regarding “related” cases and (2) because of interviews she gave to the media. The Second Circuit’s short opinion is here. Liberal legal commentators exploded in outrage. See, for example, here and here. The judge has responded as well. See here.

I’ll give my views later. For now, let me know what you think?


*I don’t know the judge. Nor do I know any of the Circuit judges on the Second Circuit panel who removed the judge.

30 responses

  1. It is pretty clear a judge should not be shopping for cases they would like to hear. If a judge does that, and is not wise enough to conceal their activity, gets caught, then it would seem the opinion of recusal is about right. I wonder, however, why these types of decisions only happen in high profile cases and districts, and not in places, say where a judge is represented by the Department of Justice who regularly appears in their court. It seems like recusal and disqualification orders are seldom used in comparison to when they are warranted. The surprising thing here is that this was done without full briefing or argument.

  2. I think it is a disgraceful decision. FIrst, they disqualified a sterling and well-respected senior judge sua sponte, on the flimsiest of grounds. The City’s stay motion didn’t ask for it. So there is no record, and no one was able to argue against disqualification.

    Second, where are the findings that the appeal is likely to succeed, or that there will be irreparable harm to the City without the stay? If anything, the continued invasion of the public’s constitutional rights causes irreparable harm to the public.

    Third, what is the point of a remand now, while the decision is stayed? What is there for the new judge to do?
    Fourth, it is blatantly political, from a panel of reliably right-wing judges.
    Fifth, the deadline of late January which the court set for perfecting the appeal is so far away that the usual rules requiring prompt briefing when there is a stay have been ignored.

    Of course, what they did (surely intentionally) was allow our new mayor (as of Jan. 1) to follow through on his stated support for Scheindlin’s decision. Let’s see if he has the courage to tell his new Corporation Counsel to withdraw the appeal, and bring the City in compliance with the Fourth Amendment for a change.

    All in all, a shocking, outrageous and lawless ruling, intended to chill any exercise of real judicial independence. Every federal judge should be angered by it, and I look forward to your reaction, Judge Kopf. Even though you and I have very different political views, we surely would agree as to the importance of that independence.

  3. As a preface, I would remind Your Honor that these comments WERE solicited. 🙂

    First and foremost, let’s be honest: as Bork, Kagan, Posner, and Kozinski have all admitted, we no longer have judges in this country at the appellate level; we have self-appointed “Platonic Guardians,” for whom fealty to the law is an undiscovered country. Our federal “courts” are a freak show–accurately described by those who study these things as the worst in the Western world[1]–with the only thing missing being the dog-faced boy. “Judicial discipline” is comically inconsistent because the fox is running the hen-house; when you compare the actions taken here with the open cover-up (Manuel Real) and even deliberate fraud (Samuel Kent: CA-5 literally lied to the public; Clarence Thomas’s fraudulent EIGA filings) in other cases, even a Balzac would strain mightily to find the right words. One of the last decent judges in America, the late Judge Roger Miner of the Second Circuit, practically read my mind here:

    “The major cause of the loss of public confidence in the American judiciary, however, is the failure of judges to comply with established professional norms, including rules of conduct specifically prescribed. In brief, it is the unethical conduct of judges, both on and off the bench, that most concerns the citizenry.”[2]

    To me, the bigger story is CA-5’s decision to reverse the stay on Texas’s abortion evisceration laws, changing the status quo ante pending appeal. The story is big because it is a “dog bites man” story in our hopelessly partisan judocracy: Before I even looked at the opinion, I knew who appointed the three judges on the panel. I’ll give you three guesses … and the first two don’t count. In the trenchant prose of CJ Alex Kozinski, federal judges are constitutionalizing their personal preferences [Silviera, dissent], and they do it every damn day. We might as well do away with professional judges altogether, and pick citizens out of the phone book to decide our disputes, as the United States Reports no longer counts as anything more than a polite suggestion. And, according to many judges–don’t shoot me; I’m only the messenger–judges lie in their opinions SO often [e.g., Dershowitz; Silberman, Llewellyn, Wald, et al., ad nauseum] that pretty much anything in the Federal Reporter could just as easily have come out of the old Pravda.

    It is a rare pleasure for me to give props to federal judges, because there is so little they do that is even marginally praiseworthy. But I have to applaud this statement:

    “In May, Senior U.S. District Court Judge Shira Scheindlin told the New York Law Journal that judges don’t take enough chances. “They are fearful or they want a promotion or whatever it is, they don’t exercise the independence they should have,” she said. “State court judges of course face re-election, which is a terrible thing, but federal judges, who are appointed for life, don’t appreciate how much independence they have—many of them are a little cautious, more cautious than they should be. [Bazelon]”

    One is truly left to marvel at how any group of people who are so completely divorced from the tether of accountability could be so thoroughly emasculated that they can’t even denounce the spectacle of a judge sitting in judgment of a case in which she is proper party defendant in tort (yes, it really CAN happen). There is a “guild mentality” [D’Amato, Breyer, Kozinski, Posner] pervading the federal bench so pervasive, that when anyone violates the code–the Mafia calls it omerta–can and will get “whacked.” Here in Colorado, a judge who went to the FBI in good faith with a suspicion that a colleague was snorting cocaine on the bench was whacked by our equivalent of the Council–the only judge in recent memory to be disciplined (we are a Missouri Plan state, which is why, as is the case in the federal system[3], there is no judicial discipline to speak of).

    Scheindlin was whacked for breaking the Code. Make no mistake about it.

    When judicial candidates have to pass a political litmus test–and make no mistake about it, the Shrub’s Administration had one–to reach the bench, it obliterates the concept of “impartiality,” as you pretty much already know these days how a given panel is going to rule based on who elevated the members to the bench. In Bush v. Gore, ONE judge broke ranks (I personally wrote to praise him for it). In the Colorado apportionment case, and the lawsuit that let Frank Lautenberg run, partisanship ruled with predictable purity. As a friend who practices election law once told me, “everything depends on which Party appointed the judge; if it’s a Democrat, I’m screwed.”

    “And: “I don’t think I’m the favorite of the U.S. Attorney’s office for the Southern District. Because I’m independent. I believe in the Constitution. I believe in the Bill of Rights. These issues come up, and I take them quite seriously. I’m not afraid to rule against the government.” For a judge to talk like that with a big civil rights case pending isn’t the most circumspect or prudent move. But what should matter far more is that Scheindlin didn’t break the rule against talking about pending cases, as she has pointed out. And so scolding her for talking to the press will just make other judges afraid to get anywhere close to the line.” [Bazelon]

    If, as a group (exceptions are distressingly rare), judges weren’t as faithful to the Constitution as Tiger Woods was to ex-wife Elin, I might find this more deserving of outrage. But it’s really just another “dog bites man” story, with the judiciary displaying all the integrity of the Boston Archdiocese. I think Gerry Spence was onto something when he proposed that our judges be drafted and chosen at random from experienced members of the Bar for five years–then, we would get a professional judiciary, that would understand that when they went back to the real world, they would have to actually live with what they did. Matt. 7:12.

    Even the mere thought of career law clerks just scares me.

    [1] Agrast, M., et al., 2012-13 WJP Rule of Law Index (Wash., DC: World Justice Project). The list of heavy hitters behind them include former President Carter, Tony Blair’s wife Cherie (who has considerable gravitas on her own), Chief Justice Beverly McLachlin of the Supreme Court of Canada, former Lord Chief Justice Harold Woolf of England, four SCOTUS Justices, and three former Secretaries of State.

    [2] Douglas Martin, Roger J. Miner, 77, Dies; Judge Valued Neutrality, N.Y. Times, Feb. 20, 2012, available at http://www.nytimes.com/2012/02/21/nyregion/roger-j-miner-judge-who-valued-neutrality-dies-at-77.html (Judge Miner may have blown his chance to become a Justice of the Supreme Court because he refused to lie about how he would rule on cases involving abortion to Republican lawmakers). The quote is from 15 Roger J. Miner, Judicial Ethics In the Twenty-First Century: Tracing the Trends, 32 Hofstra L. Rev. 1107, 1108 (2004)

    [3] Dr. Richard Cordero did a study, finding that only about a dozen of some 7,000 complaints filed with the Circuits resulted in public discipline. Given what I’ve seen, and the spectacle of the Real discipline case, that doesn’t surprise me in the least. Penn State would have covered up the Sandusky scandal if they could have, too.

  4. I wish I knew what had been said to the Second Circuit at oral argument on the motion for a stay the day before this order issued. It might illuminate a lot.

    Having followed (from afar) Floyd and Ligon with some interest and detail, it seems to me that Judge Scheindlin did recently choreograph fairly well that she was not happy with the City Defendants, and that a reasonable person might indeed question her partiality. But, that was well into the proceedings, and it is not unacceptable for a judge to lean in a particular direction as a case unfolds.

    But I don’t think the two reasons that the appellate panel offered for its order do a good job of justifying it. Scheindlin solicitation of filing an additional related case under Local Rule 13 (the related cases rule) seemed just fine, as long as the rule itself is valid. And speaking to the press about other issues before her, not on the pending stop-and-frisk cases, also seems fine.

    Now, perhaps there is indeed a problem with LR13 — with the rule itself, not its application here. Not sure about that.

    It seems really weird for the Court to sua sponte order this. Given that they ordered the case stayed, they could easily have considered the question of Scheindlin at a more leisurely schedule and at longer written length.

    So, unfortunately, the Second Circuit gives the appearance that might be giving more credence to political concerns than may be warranted. This also, unfortunately, comes on the heels of a dispute about the briefing schedule between the parties, where the City’s top lawyer, its Corporation Counsel, wrote a letter (ECF at 238) to the Circuit suggesting it should shorten the briefing schedule “so that the cases can be heard and decided by the end of the year. ‘We recognize that adoption of this briefing schedule would result in curtailment of appellees’ time to file their briefs.’

    The Floyd plaintiffs reply by letter (ECF at 241) noting that the Corporation Counsel hasn’t filed an appearance in the case, and that suggesting this is a blatant attempt by the City to resolve the case before a new mayor takes office. And there is a high liklihood that mayor will have a very different opinion on stop-and-frisk than Mayor Bloomberg.

    So, with that as a contextual background, I find the Second Circuit’s move here…troubling. They could have waited and been equally effective, so now they have given the appearance of a rush to judgement.

    But maybe there was something important said at oral argument that I missed.

    p.s.: I’ll link to the archive.org dockets for the district and appellate-level cases in a subsequent comment. But too many links make commits sit in the moderation queue, so I’m not doing it here.

  5. I agree with Richard about the implications of the briefing schedule and add a further thought. Given that the new City administration will probably withdraw the appeal and deprive the Court of Appeals of the opportunity to vacate the opinions below, this order is the Court of Appeals telegraphing that the various opinions in the stop-and-frisk case and the related cases should have little or no precedential value and that litigants rely on them at their own peril. Municipal corporations defending against civil rights claims will no doubt cite this order in response to any future plaintiff invoking the various opinions of Judge Scheindlin.

  6. Regardless of the merits of the result, I dislike the method. Since the case was stayed, they could easily have sought briefs on the matter. In particular, I feel it is unfair to Judge Sheindlin to deny her an opportunity to respond to accusations of impropriety before they are made into a final ruling. In general, if a court is considering a sua sponte decision, it should request briefs on the matter. Some circumstances may prevent this, but if there is no added prejudice to either party from briefing the question, then the question should be briefed.

  7. I think whithout a factual hearing they were precipitous. It may be justified but how about some fact finding and an opportunity to be heard first? Then, as Peter H wisely suggests briefing.

  8. The precipitous, sua sponte removal of Judge Sheindlin from the case is expressly predicated on asserted violations of the Code of Judicial Conduct, rather than under 28 USC 144 or 455. This makes the decision personal against her, rather than a proper part of the pending action, and rather blatantly violated her due process rights, and disregarded the procedures in place for the imposition of judicial discipline. That said, I have to disagree with the comment from Robert Altman at 9:47 am, referring to the 3 circuit judges as “a panel of reliably right-wing judges.” That is not a fair description of either Judge Cabranes or Judge Parker.

  9. I might concede the point made by Anonymous about Parker, but not about Cabranes. And it’s certainly true about Walker, whom I have had the misfortune to appear before. In any event, the decision is the worst kind of judicial activism, a personal insult to Judge Scheindlin, and once again demonstrates the crass politics at work here. I thank Mr. Hawkinson for noting the letters showing the City’s attempt to rush the briefing schedule, which prove my point.

  10. On the matter of “soliciting cases” when she invited a class action, Judge Scheindlin may or may not have been doing that. She would have been better served, though, not to add that she would take the case herself, but rather to let the court’s ordinary assignment process take its course (with it being assigned to her anyway, for much the same reasons she offered to take it?).

    On the matter of interviews, Judge Scheindlin had this in her statement:

    …express condition that I would not comment on the Floyd case. And I did not. Some of the reporters used quotes from written opinions in Floyd that gave the appearance that I had commented on the case.

    Surely an experienced judge would have known of just such a risk; although I suspect this is a matter of misplaced trust rather than a “wrong” interview. Nevertheless, the impression is damaging to an appearance of impartiality. In the era of my active duty days, it was illegal in the USAF to have even the appearance of a conflict of interest. It was a sound policy in the military, and it’s a sound policy for the judiciary.

    Our host has a rule about interviews. Here is an example of why that rule is sound.

    Eric Hines

  11. Judge– I was outraged by this action. First of all, it is my understanding that this action was sua sponte on the part of the 2d Circuit panel. This decision has become one of the hottest issues in the current NYC mayoral race, and the Court’s action has the appearance of being political. It also brings to mind a similar action about 2 years ago, when the 3d Circuit removed Judge Martini from re-hearing a murder case against a [former] US Attorney – turned-high-profile-criminal-defense lawyer, Paul Bergrin, after he had been very critical of the conduct of the prosecution team. These are like warnings to the trial bench– “don’t forget, you’re on our [the government’s] side”, right or wrong. It is very troubling to me.

    George J. Cotz
    Ramsey, NJ

  12. Like Richard Altman, I often find that rulings by judges I disagree with are disgraceful, as well as crassly and blatantly political, while rulings by eminent, well-respect judges I agree with are invariably beyond reproach. And I also prefer to conspicuously avoid addressing the substance of any charges against the judge I agree with.

  13. The Bergrin matter was I believe at the request of the prosecution, and was fully briefed between the parties. That substantially differentiates it from this action, which was sua sponte and not briefed on by anyone. You can disagree with the 3rd circuit in that case on the merits, but there is a procedure that exists for reassignment, and the circuit in Bergrin followed that procedure.

  14. This sort of dispute about the facts of what happened is part of why I think it’s disturbing that this was done sua sponte and without any briefing on the merits. The panel’s ruling for example cites three interviews, and their purported purpose*, but gives no evidence or indication what about those interviews was in fact improper. Nor do they say why her use of the related case rule is in fact improper.

    With no briefing on the judicial code of ethics, the 2nd Circuit here has publicly and powerfully disciplined a judge by pure assertion. That is extremely improper. If the ruling were based on an argument that was of record, at least we could point to the prevailing side’s argument in their briefs. But with no briefing, no argument, and no chance for Judge Scheindlin to defend herself, we have just a flat assertion by the circuit.

    The 2nd Circuit’s ruling may be correct on the merits, but the process by which it was reached is incorrect.

  15. In response to Jay, I have often been convinced by an opinion that I was right to lose a case or motion, and I have sometimes been surprised when I won. So it’s not always true that the judge is a genius when I win or a moron when I lose. But the naked power of this decision, the personal insult to Judge Scheindlin, and the complete lack of merit to the sua sponte reassignment are more than enough for me. She gave an interview, said she would not discuss the pending case, and she did not. She is not responsible for the editing. She talked about the importance of constitutional rights, and decried the lack of courage of some of her colleagues. As for the reassignment, she would have ended up with the second (obviously related) case had she said nothing. Where is the merit to the Circuit’s decision on these facts?
    Given that this case was a major issue during the mayoral campaign, to throw the judge off the case sends a strong signal that the Court is playing politics, and that it just doesn’t like what she did. It could have just granted the stay and said nothing. After all, the stay just means that the police can continue to stop and frisk black and Hispanic New Yorkers without probable cause for the next few months….no big deal, right?

  16. I apologize for thinking I was signed in, when I was not, as a result of which my prior comment appeared as “Anonymous.” I also apologize for misspelling Judge Scheindlin’s name. I stand by my comment. It does no one any good to characterize a moderate jurist like Cabranes as “reliably right-wing,” much less a centrist civil-rights stalwart like Parker.

  17. I’m not sure I buy that we no longer have a judges at the appellate level, but obviously the Manuel Real situation is less than ideal. Frankly I’m tired of seeing Real Reversals (reverse and remand to new judge, typically in unpublished decision).

  18. Is there a significant judicial decision these days that ISN’T political? Our courts have become as polarized as our legislature, and their rulings are becoming more and more transparently so. It seems that every decision is tainted to the point of being cringe-worthy.

  19. As a general rule, our aristocratic judges have nothing but disdain for the little people they so capriciously rule. By way of example, Scalia doesn’t believe in a right to privacy, but he had kittens in a case where his address was properly disclosed under the Federal Rules, demanding that it be redacted. That the Second Circuit wanted to send that message that rights are for your betters is fairly pellucid.

    Never mind that home addresses have been public records since the days of William the Conqueror. Never mind that his home phone number is available in a Google search. I will give you three guesses as to how that corrupt court ruled, and the first two don’t count.

    My overaching point is that I shouldn’t be able to say this about our courts, but the facts are indisputable. As Edward Gibbon wrote in his magnum opus, the discretion of the judge is the first engine of tyranny.

  20. As Senior Judge Roger Miner of that same Circuit observed, “one of the most important societal duties of lawyers is THE DUTY TO CRITICIZE THE COURTS. It is my premise that informed criticism of the courts and their decisions is not merely a right, but AN ETHICAL OBLIGATION imposed on every member of the bar.” RJ Miner, “Criticizing the Courts: A Lawyer’s Duty,” 29 Colo. Law. 31 (Apr. 2000) (emphasis added).

    If you are going to criticize though, you have an obligation to be fair.

  21. Josh, is there a precedent in this country you AREN’T relying on at your peril? Even Marbury v. Madison isn’t safe….

  22. Judging is all about politics these days. Gone are the halcyon days of Learned Hand, where appellate judges actually read the briefs, as opposed to not even bothering to read the decisions they deliver. When you think about it, ‘deliver’ is the right word, as they have little more to do with the crafting of unpublished decisions than the delivery boy does your pizza.

    Richard Arnold only felt “dirty.” As for me, I feel outrage.

  23. Back in the good old days, judges used to go into the privacy of the stall to use the Constitution as toilet paper; these days, they do it openly and wipe the end product in your face.

    Appellate courts are de facto certiorari courts [Richman], wherein judges only bother with the the cases they care about. Kozinski is known to write fifty drafts of a published opinion, and admits to writing opinions “precisely for the purpose of getting into” casebooks, Emily Bazelon, The Big Kozinski, Legal Affairs, Jan-Feb. 2004, whereas panels in his Circuit may issue 150 rulings per three-day session, Alex Kozinski, Letter (to Judge Samuel A. Alito, Jr.), Jan. 16, 2004 at 5; Perfunctory Justice: Overloaded Federal Judges Increasingly Are Resorting to One-Word Rulings, Des Moines Register, Mar. 26, 1999, at 12 (fifty federal appeals decided in two hours in Eighth Circuit) And as Kozinski concedes, the work product is about what you expect from pampered and lazy Harvard legacies they dump it off on: it is “sausage,” unfit for human consumption. Tony Mauro, Difference of Opinion, Legal Times, Apr. 12, 2004.

  24. In response to Ken Smith, I think it should be said that judging has always and ever been political. That is not intrinsically a dirty word, and it wasn’t one even to Learned Hand. To think otherwise is to refuse to grow up and accept the reality of political power. But the difference between, for example, the Warren Court’s expansion of the rights of criminal defendants and the Roberts Court’s expansion of the rights of the plutocracy is that the former was honest about what it was doing, and the latter is not. And the difference matters, not least to the public perception of the courts. Bush v Gore, with its lawless “decision good for this case only?” Shelby County? Citizens United? And a dozen others in addition to the case which is the subject of this blog thread? Where are the neutral legal principles which can support any of these decisions? They are nothing more than the exercise of raw power in favor of the state and the propertied.

  25. I work in patent law, and so far the rulings there have been fairly politics-free. Thankfully, neither party has strong views on patents, so it has avoided the fray.

  26. I’ve been a tax guy for most of my life; you are in a bailiwick where no one really gives a damn. Stalin’s judges played it straight in disputes involving marriages, murders, and the kind of matters where neither the State nor judges really had a dog in the hunt. Most people think that child-rape ought to be punished.

    The problem is that judges are answerable to no one but themselves and, that judges are human. Raw power is the political equivalent of crystal meth, which is why so many judges work for free. Jefferson is as brilliant a man as has ever graced these shores, and he saw the problem clearly:

    “The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law.”

    Thomas Jefferson, letter (to Judge Spencer Roane), Sept. 6, 1819.

    These days, even moral law has died a natural death and with it, any constraints on judicial tyranny. Basically, what you have is a band of black-robed Ba’athists fighting over power. Judges are like Tolkien’s Orcs: They will routinely fight among themselves, but if you attack the clan, they will “circle the wagons” and fight with a ferocity that shocks the conscience.

    King Alfred had to behead 44 judges, and the vassal king Cambyses turned one judge into upholstery. Will we find the courage to control these black-robed dictators? Our liberty depends on it.

  27. Thank you for your incisive response, Richard. Whereas the lethal blow to our Republic was struck two centuries ago in Callender v. US, Bush v. Gore will go down in history as the day the law officially died. I say that as an active moderate Republican–I didn’t serve as a state assembly delegate last cycle for personal reasons, but have done so on numerous times in the past–who has no particular political axe to grind.

    Whereas there has always been a political component to judging, the sheer transparency of our overlords’ claim to Platonic Guardianship — when Kagan and Bork agree on anything, it is probably worthy of our attention — is, quite frankly, astonishing. Jefferson predicted this, and the most intelligent man to have ever graced our shores is rarely wrong.

    Bush v. Gore and Anastasoff are joined at the hip. Unpublished opinions are “decisions good for this case only,” with the added indignity that they are often in direct contradiction to the “official” law of the land, as declared in “binding” precedent. When I learned through bitter experience that I couldn’t even rely on Supreme Court decisions directly on-point, I got really, really interested in judicature. Whereas

    I feel for Judge Kopf. He is one of the last of the “good” judges–homegrown ones, who didn’t have an attitude installed by a proctologist whilst at Harvard. When it comes to a core judicial philosophy, we practically finish each other’s sentences (I am a real originalist, as opposed to Scalia, which is why I am an amateur historian). But he can’t even denounce the singular spectacle of a judge sitting in judgment of an appeal where he is a defendant in tort–that is even over the line in Zimbabwe–because of the peer pressure that splattered Judge Scheindlin.

    My case against the courts is made by judges and respected academics who have bluntly chronicled this once-venerable institution’s descent into vacuity and farce. If you don’t find politics, politics finds you, and one place where it comes home is in what used to be a credible judicial system. When I was last in Australia, the kangaroos sued me for defamation when I called the federal courts “kangaroo courts.” 😉

    As I understand it, the Scheindlin rebuke was astounding for its flagrant lack of process. Judges do what they always do–pretty much what they want, with an arrogance and openness that would make Stalin envious. Even Stalin had to maintain the appearance of respect for the law….

    When you get a judge drunk, you hear the inside skinny. 🙂

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