Kopf’s questions about the continuing but utterly depressing cage match at the Second Circuit?

Judge Shira A. Scheindlin is seeking relief in the Second Circuit. The prevailing parties in the district court apparently support her and have submitted or will soon submit papers formally announcing their support. On the other side, the City, swinging for the fences, cheers for the panel’s decision to throw Judge S. off the cases, and, if I read the motion correctly, ups the ante by seeking to vacate the trial judge’s merits and remedial decisions for a lack of impartiality.

I have the following questions. I would appreciate hearing answers from readers including most especially the reasoning behind such answers.

1. Do you agree with Judge S.’s decision to seek relief from the order throwing her off the cases?

2. What should the panel (Judges Jose Cabranes, Barrington Parker and John Walker) do with the various filings by the trial judge and the parties?

3. What should the Second Circuit, writ large, do with the various filings by the trial judge and the parties?

In a day or two, I may provide my answers.


28 responses

  1. Anytime a judge disagrees with the enterprise, they risk branding as biased. Fighting social injustice requires determination and conviction. Losing can be costly, to reputation and career. The ultimate beneficiaries may not know the battle is being waged or, if successful, that anything has been accomplished. But to not fight render make one’s commitment to seek justice a mockery. Better to lose than not to fight.

    As for what the panel should do? They should say what they really feel and then disqualify themselves. The Circuit should meet en banc and discuss the issue after listening to counsel and the entire proceeding should be televised.

  2. It is not at all inappropriate for an appellate court to protect the integrity of the judiciary. The “appearance of impropriety” does not mean a judge did something wrong. It is also not unheard of for an appellate court to decide that a different judge should preside over the continuation of a particular case (although this is usually done both where there is an actual possibility the judge cannot be neutral as well as where there is the “appearance” of such).

    A Judge does not own a case and has no right to continue to preside. I do support the filing because it is important to allow her to attempt to clear any slur, however, I’m not certain she has standing to do so. Dean

  3. How does Judge Scheindlin even have Article III standing to seek relief from the order? I can’t see any injury-in-fact that she’s suffered. Any injures inures harm of the litigants, not the judge herself.

  4. 1. Yes, Judge S’s decision to seek relief is entirely valid. I’ve written elsewhere in this macrothread that the 2d Circuit’s decision to remove her over an “appearance of impartiality” question was entirely valid. However, they should have held some sort of show cause hearing to let S make her case first, and possibly even to change their minds. This appeal is that opportunity.

    2. They should recuse themselves. They said all they had to say, pretty much by definition, in their order removing S. If they wanted to say more, that was their chance. Now, to paraphrase a French ex-President, is a good time for them to shut up.

    3. Leave them alone. There’s nothing in the present back-and-forth about S’s removal that impugns her impartiality in her past rulings other than the city’s self-serving allegations in their filing. The city is just rolling the dice in bringing that frivolous beef, and the 2d Circuit should sanction the city’s lawyers for bringing it.

    Eric Hines

  5. The panel’s sua sponte “removal” struck me as unnecessary, and hence either political and/or vindictive. It was also based on who knows what record or “facts”. For that reason, if nothing more, I think she has a right to defend herself and her reputation, and unless someone can suggest a different and better forum, filing something with the 2d Circuit seems appropriate to me.

  6. The 2d circuit should take the case en banc, allow briefing from all parties, including Judge Scheindlin, and decide the matter of recusal as well as the merits on a full record. As I understand related case doctrine in Federal court, Judge S did nothing wrong. The fact that she spoke about the cases with press is not necessarily unethical or improper. A challenge for bias needs more than a newspaper article. So if the city has something substantive regarding bias, let us hear it. I personally don’t see it.
    This controversy seems an awful lot like a tempest in a tea party.
    Terry Roberts

  7. Rich, I doubt that Judge S. has standing to seek relief. The panel’s comments about her “running afoul” of various judicial canons are, from her standpoint, nothing but annoying verbiage. If there were some disciplinary proceeding being instituted against her that would be a different matter. But she doesn’t and she isn’t going to be impeached, and even if she were the panel’s statements would have no preclusive effect. All in all, she has no Article III “stake” in the matter as far as I can tell. A judge does not have any particularized “right” to hear a particular case. Moreover, I fear, her decision to retain counsel (undoubtedly on a pro bono basis, but highly skilled — including Arthur Miller with whom I filed an amicus brief on the winning side of a high stakes New York Court of Appeals case last year) alone is calling into question her impartiality. So all in all — no, I don’t agree with her decision to seek relief.

    If anyone is to seek relief it should be the plaintiffs in the underlying matter, who apparently have now taken up the cause. But the fact that a District Judge is retaining counsel in a spat with a higher court looks decidedly “un-judicial.”

    I think that the panel should dismiss whatever was filed by her (is it a petition for a writ?) for lack of standing. If the panel wants to say that the plaintiffs’ decision to join in her motion rescues the matter for lack of standing, I believe that the panel should affirm its prior decision but suggest that the matter is appropriate for en banc review by the Second Circuit.

    I suggest then that the Second Circuit appoint an out-of-circuit District Judge as a special master to make factual findings on the subjects of whether Judge S. should have been disqualified under the applicable statutes.

    That’s about the best I can do. Best, Pat.

  8. The unceremonious removal of Judge S would seem to impair her reputation. If that’s true, that would seem then to impair her ability to function as a judge in subsequent cases, or at least in similar ones (as opposed to related, as that term is used in this context). That also works to the disadvantage of litigants appearing before her, as has been pointed out already. The impairment of her ability to function as an Article III judge seems to me to give her an Article III stake. How does that damage to her ability to do her job (even if only potential) leave her without standing in her appeal?

    But the fact that a District Judge is retaining counsel in a spat with a higher court looks decidedly “un-judicial.”

    Looks “un-judicial” to whom? This layman has no problem with a judge retaining counsel to assist her in a legal matter–of any sort. Like doctors, a lawyer–or judge–who represents herself has a fool for a client.

    Eric Hines

  9. My main thought is: if the panel were to accept the City’s invitation and vacate the trial ruling, that would _certainly_ merit going en banc immediately.

    Hopefully, the panel will not up the ante in that way.

    As it is, on the substance, her ruling stands, and I doubt the new Mayor will want to appeal anyway…

  10. I obtained a copy of the transcript of the Oct. 29 hearing before the Second Circuit panel, from Prof. Kalhan (thanks!). It is here: https://www.documentcloud.org/documents/817685-oct-29-2013-2nd-circuit-transcript-floyd-oral.html.

    I haven’t finished going through it, but it certainly makes clear that the panel has spent time reviewing the record and is well aware of political considerations (at least as they apply to the parties).

    The question of Judge Scheindlin’s standing is probably moot, since the plaintiff-appellees seem poised to make similar arguments. The Ligon plaintiffs have already done so, in their citation-free brief from Friday, and the Floyd plaintiffs have said they will file something similar tomorrow morning.

    And Scheindlin’s pro bono counsel, Prof. Neuborne, wrote to the Court friday (docketed yesterday), saying, “We believe, and the District Judge concurs, that it is in the best interests of all concerned to terminate a dispute that is distracting attention from the underlying merits, while preserving the rights of the parties to raise the issue in the ordinary course.

    “Accordingly, we urge the panel to withdraw, without prejudice, so much of its order herein, dated October 31, 2013, as sua sponte found that the District Court’s actions had ‘run afoul’ of the Code of Conduct for United States Judges, and directed her removal as presiding judge in Ligon v. City of New York, 13-3123 (corrected), and Floyd v. City of New York, 13-3088. Such a course of conduct would permit the parties to raise the issues at an appropriate point in the proceedings without being forced to address them in the context of an unseemly dispute among judges.

  11. Eric, appellate courts often do things that hurt the reputation of the lower court, but that doesn’t give the lower court the right to seek relief. Heck, I remember one case that came through Judge Kennedy’s chambers where the IRS put a lien on a couple’s house, even though the lien was for a tax debt that the prior owners had incurred and there was a statute that plainly said that the IRS couldn’t get a lien in this circumstance. But the IRS went ahead and did it and the couple went to a federal District Court to try to get the lien removed. For God-knows-what reason the District Court ruled in favor of the IRS. So the couple appealed and the Ninth Circuit reversed and imposed sanctions on the IRS forcing them to pay the attorney’s fees of the couple. OK, now think about what that said about the District Court. The Ninth Circuit said not only that the District Court was wrong, but ruling for the IRS was completely idiotic to the point that the IRS never should have forced the couple to even have to go to court in the first place. Well, that didn’t do much good for the District Court’s reputation, and deservedly so.

    Article III standing requires a meaningful stake in the outcome of the dispute. Heck, the Supreme Court ruled that the proponents of Prop 8 in California (the one imposing the ban on same-sex marriage) didn’t have Article III standing to appeal the lower courts’ rulings that the ban was invalid. I’d say they had way more of a stake than does Judge S.

    It’s un-judicial (in my opinion) for judges to get counsel on something like this because judges aren’t supposed to be advocates. Through her lawyers she’s acting essentially as an advocate saying that she should be able to keep getting these cases as related and should not be removed from the case. It’s a little like a judge getting reversed on something the judge really cares about hiring a lawyer to defend the lower court’s position. Let’s say the judge is a fervent opponent of the death penalty, grants a writ of habeas corpus setting aside a death sentence, and then getting reversed by the circuit. Could the judge then hire a lawyer to seek to have the U.S. Supreme Court reverse the circuit court and re-instate the District Court’s grant of the writ? I think just about every lawyer or judge you’d ask would say “of course not.”

    I always appreciate your well-informed layman’s perspective on these issues, because it’s a valuable one. But as someone “inside” the system, I can say with some confidence there’s stuff you just don’t do as a judge, and in my opinion this is one of those issues. I will be interested in Judge Kopf’s reaction. Best, Pat.

  12. Eric, one other thing that I thought of after posting my more extended reply below. Here in a Nebraska state court we had a County Court judge impose what almost everyone considered to be a ridiculously high bond on a case. The prosecution, recognizing that it was ridiculous, did not bother to oppose the defense’s appeal to the court above the County Court to get it reduced. The County Court judge was so incensed, that she actually filed a motion and appeared on her own behalf in front of the court above in order to try to get the bond reinstated. The Nebraska Supreme Court suspended her without pay for four months saying that she had completely transgressed the role of being a judge. Now discipline like that couldn’t occur in the federal system, because judges have life tenure. But in state court’s they generally don’t and are under the supervisory authority of the state supreme court. Best, Pat.

  13. Judge Borchers, thank you. However, all of your examples involve a court being reversed, which I agree is no big deal (unless a judge or a court gets a reputation for being reversed routinely, like the 9th Circuit, but that’s a separate problem). Reversing a lower court doesn’t impact the presiding judge’s reputation–and the judge is distinct from the court over which she presides in this or that case.

    Judge S, though, is appealing her being removed over a violation of the CoC–generating an appearance of impartiality–not her being reversed. It’s the unexplained/unsupported aspect of that that’s reputation damaging, to her as a judge (not to her as the court), as much as the characterization itself. Also, the judge’s reputation, and a court’s, matter in front of the public, and frankly it should matter there more so than within the legal system. If the public doesn’t think it can trust the legal system, then we get vigilantism, as the public simply takes matters into its own hands (which we should do more of, anyway, but not necessarily via the vigilante route). If the lawyers and judges don’t think they can trust each other, then “all” we get is political games within the system and a more expensive–for the public–process.

    In the end, my argument, though, centers on the lack of substantiation in the 2nd’s removal of Judge S. There are lots of reasons for removing a judge that aren’t reputation damaging (“You’ve just gotten too close to this case” might be one), and lots that are justifiably damaging, but the 2nd Circuit declined to offer any. The public is just left with the bald fact that a judge was tossed over a Conduct violation. That reflects badly on the judge (and for many of us in the public, that reflects badly, also, on the 2nd’s reputation: had the 2nd any actual reason for the removal, they would have offered one). It’s on that basis that I don’t see a lack of standing.

    As to her hiring a lawyer to represent her, given what she’s appealing, I still have no problem. Even a judge is allowed to defend her reputation, which is more important to her ability to do her job than, say, mine is to my ability to function. Were she appealing being reversed, I’d agree with you: no appeal is warranted, no lawyer needed to press the appeal; this would be one of those frivolous suits I disdain.

    Eric Hines

  14. Pat, see my post of today. This thing has become a monster like Godzilla and needs to be killed before it smashes Toyko, New York and what’s left of the respect for the federal judiciary in the Second Circuit. All the best.


  15. Eric,

    Pat is not a judge, although he would be a great one. He is distinguished law teacher and former Dean of the Creighton University Law School. He is also a great guy who is respected by judges, academics and practitioners alike for his kindness, brilliance and good judgment.

    All the best.


  16. I would ask the Court to take judicial notice of the fact that I didn’t say it. 🙂

    My question: If it is eminently proper–and I would stipulate that it is–for you to conclude that the “cage match” in the CA2 seriously erodes “what’s left of the respect for the federal judiciary” there (by implication, admitting that it is already compromised), is it not just as appropriate for me to conclude that a vast array of incidents which are far worse and inflict permanent injury (all the CA2 did was hurt judges’ feelings) has corroded that reputation beyond repair?

  17. Pat,

    I think we are agreed on the basics. I wouldn’t go en banc, but I would get this to a new panel (without necessarily requiring Cabranes, et al to recuse). All the best.


  18. Pingback: Judge Scheindlin was wrong to enter the fray at the Second Circuit « Hercules and the umpire.

  19. OK, the panel just issued a 9 page per curiam opinion denying Scheindlin leave to appear as an amicus.

    It also indicates they’re about to issue a more fulsome explanation of their Oct. 31 order:

    In a separate opinion published contemporaneously with this one, we explain the basis of our prior, brief order reassigning these cases from Judge Shira A. Scheindlin to a new district judge of the United States District Court for the Southern District of New York, to be chosen randomly.

    but it’s not docketed yet.

  20. The takeaway is priceless: “What you have to remember about the judge is that she thinks cops lie.” [12] Uh, doesn’t everybody?

    If I had a dollar for every time a judge lied or shaded the facts or the law to make it seem like her personal preference was mandated by the law, I could buy Donald Trump out of petty cash. And if I had a dollar for every time a cop lied on the stand, I could by myself out of petty cash.

    It was worth a good chuckle. Certain of Judge S’s colleagues are “inclined to favor the government?” Knock me over with a breath, Pastor Benny!!! Pretty much every judge is pro-gub’mint these days, because the DoJ and clerking is the farm team. Sure, Judge S. is biased. Find me a judge who isn’t. The last time I saw anyone pass RGK’s character test–follow the law wherever it leads, even when you despise the outcome–was a bankruptcy judge in Texas. (I wish I could find that case again.) Any judge who thinks cops lie is the short definition of a legal realist. 😉

    I think we love you, Judge S.

    I still like Gerry Spence’s suggestion that we draft experienced members of the Bar, purely at random, for five-year terms on the bench. I am quite confident that the quality of justice would be far superior, just as I am far more likely to trust untutored jurors than biased judges.

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