Judge Scheindlin was wrong to enter the fray at the Second Circuit

Earlier, I asked several questions of readers regarding the debacle at the Second Circuit.  Among others, I asked: “Do you agree with Judge S.’s decision to seek relief from the order throwing her off the cases?” I propose now to answer my own question.

I have great respect and empathy for Judge Scheindlin. She is a very good trial judge who has been treated very badly by the Second Circuit. Having spent six years sitting as a member of the Judicial Conference’s Code of Conduct Committee, I am confident in stating that nothing written in the paltry panel order throwing her off the cases establishes a violation of the Code. But, I believe strongly that Judge Scheindlin was wrong to get involved in the fray at the Second Circuit by retaining counsel and filing papers in the appeal. Her first duty is to the litigants (both the plaintiffs and the defendants) and not herself. Asserting herself in the Second Circuit has done nothing to advance a rational resolution of the merits of the parties’ dispute. If anything, the judge’s actions have made things far worse. The Circuit has acted like an angry and petulant toddler, and it is up to the trial judge to be the adult in the room. She should withdraw her request for relief.


27 responses

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  2. I must disagree, with all respect, with Judge Kopf and with Mr. Greenfield (whom I believe to be the author of the Simple Justice blogpost responding to Judge Kopf’s most recent post), both of whom are speaking with the unique benefit of hindsight about what was going to happen in the immediate aftermath of the panel’s ill-advised order. When Judge S. permitted her distinguished pro bono counsel to file the application on her behalf last week, NO ONE, to my knowledge, had yet stood up IN ANY COURT to object to the panel’s order. There may have been outrage expressed in the media and in the legal blogosphere, but at that point there was no application pending before the panel or the Circuit based upon which there could have been any review of the panel’s order. Since then, there has, of course, been much activity, but would others have stood up for her if she had not done so herself? Of course, we’ll never know, will we? In my view, once again, Judge S. had the courage to speak truth to power, and she deserves to be commended for it, not scolded yet again.

  3. Judge Kopf, I disagree. This is an extraordinary situation, a raw power grab by the Second Circuit and a shamefully political decision. Judge Scheindlin’s first duty is indeed to the litigants, but she has already ably discharged that duty, and the appeal takes the case out of her hands. Now she is entitled to defend herself. Indeed, I would say she is standing up for all her colleagues.

    However this turns out, the Circuit panel’s self-inflicted wound deserves no sympathy. They have left themselves no exit: There’s no important legal issue to justify en banc review, yet if they reverse themselves, they look foolish.

  4. I concur. Two wrongs don’t make a right, but they often make a court.

    This reminds me of the train wreck otherwise known as the Michigan Supreme Court, where naked partisanship shredded the veneer of collegiality. And if anyone thinks that federal courts are not as partisan as their state counterparts, I cordially challenge that person to devise a coherent (or at least, not totally risible) legal explanation for the decision in Bush v. Gore, and why it ought not to have any precedential effect. Given the last requirement and knowing RGK’s views–which I share–regarding that bloody constitutional abortion we call the unpublished opinion, that will be a daunting climb.

    I enjoyed a little Schadenfreude in watching Judge S. get run over by her esteemed colleagues. The CA-2 decision was arbitrary, capricious, and blatantly disrespectful of law and due process–basically, what courts do on a regular basis every day. (And when you get a member of the Guild to admit that its reputation is tattered, it is a plus). Every new judge is a no-talent partisan hack–Marcia Krieger of the District of Colorado was, by all accounts, a horrible law student, whose daddy just happened to be a federal judge–who regards constitutionalization of partisan principles as an integral part of the job description. Few judges can even remember when judges were chosen on merit, and they were not convinced that they were designated as our Platonic Guardians (Kagan; see e.g., Scalia, Bork).

    But the problem isn’t partisanship: it is human. POWER – ACCOUNTABILITY = TYRANNY. In other countries with better-restrained and professional judiciaries (in France and Japan, judging is actually a career path, with applicants chosen on merit), you don’t have this sort of problem.

    So, Judge S. got run over. Us little people have that happen every day, and you can fit the totality of judicial remorse on the head of a pin. In the words of that old song, “Welcome back, baby, to the poor side of town…”

  5. Not to speak out of school, but the work that produced the submissions for the plaintiffs didn’t happen by magic. It was known that it was in the works in advance of Judge Scheindlin’s submission, and there was a great deal of discussion within local legal and academic circles about it.

    Despite your tactical use of upper case letters, many knew what was coming. Had Judge Scheindlin waited a few days, it would have been a very different landscape.

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  7. Judge Kopf – As I previously stated, you have performed a real service by raising these issues. Because you are in Nebraska, I think your blog provides a good forum for discussion of this complicated case without being too drawn into the politics in New York. I think there are so many issues that I don’t want to provide any large analysis. My first impression from reading the pleading by Judge Scheindlin’s attorneys in the Second Circuit was – I think it would have been advisable for them to set out clearly the grounds for entering that case on behalf of Judge Scheindlin. I would have wanted to be able to give a clear explanation as to the role she would be playing in that litigation – the pleading seemed to offer a variety of possible justifications for entering that case. Thus, I think I agree with you – it would have been prudent to stay out of the appeal. Filing that pleading in the Second Circuit seems to have made a complicated matter even more complicated. Elaine Mittleman

  8. Elaine,

    Thanks for your kind comment. I, too, noted problems with the initial brief on behalf of Judge S. For example, as Pat Borchers, and others, indicated there is a serious standing issue.

    All the best.


  9. Scott: I used caps only because my iPad has a hard time with italics. You refer to the plaintiffs’ submissions as if they had been widely reported in the media, but in fact their submission in Floyd (which I have now located and read) was filed only yesterday, 11/11, a full five days after Judge S.’s submission and eleven days after the panel’s order, and have yet to receive much attention. (I have yet to locate the submission in Ligon.) While “many” in legal and academic circles may well have known “what was coming” from the plaintiffs, including the judge herself and her counsel, most New Yorkers would be very surprised to learn that the plaintiffs have (finally) added their voices to hers. In any case, I fail to see how the landscape has suddenly become so very different because of the plaintiffs’ submissions. The filing that did seek to change the landscape, as you and others have pointed out, was the City’s outrageous effort to obtain an instant reversal of Judge S’s decision, and I, for one, remain pleased that the judge’s submission pointing out the absurdity of the order was filed before the City’s filing, rather than after it, as were the plaintiffs’.

  10. Forgive me if I’ve been unclear. Yes, the advance plans of the parties were not published in the papers for all to see. There are, however, discussions within the circles of people involved. Whether Judge Scheindlin knew of them is unknown, but I’m sure Burt Neuborne did.

    In light of what was coming, Judge Scheindlin might have chosen to remain above the fray, which would be the best position for her at this point. I don’t fault her for being in the mix, but had I been giving her counsel, I would have strongly urged her to let the fight happen without her involvement. Between the parties and amici, her position will be very well represented without her having to get into the same hole as the circuit panel.

  11. Curious to me, other judges in the Southern District of New York are speaking more to the press. Or so it would appear—at least one judge. Reuters just moved this story, Judge criticizes lack of prosecution against Wall Street executives for fraud, which appears to be either from an interview with Judge Jed S. Rakoff, or a summary of remarks he gave in public, or maybe both. It’s hard not to speculate that perhaps Judge Scheindlin’s colleagues are speaking out more as a way of showing their support for her.

    Also today we had a flurry of letters from both the Floyd and Ligon plaintiffs about various time extensions and replies to both from the City of New York. And a motion to intervene from the Sergeant’s Benevolent Association, and a letter from the other Police unions, etc., etc.

    We learn from the plaintiff-appellees’ letters that “the Court has directed the
    City to respond to the three en banc motions (from Ligon plaintiffs, Floyd plaintiffs, and Judge
    Scheindlin) by 2:00 p.m. tomorrow.
    ” so look for that tomorrow.

    I think the most interesting thing was the comment on related cases in yesterday’s motion for en banc reconsideration of the Oct. 31 appeals court mandate, filed by the Floyd plaintiffs (case 13-3088 ECF 267-2 at 13 of 18, or 19 of 74), highlighting that other cases are seeking recusal of judges because of alleged abuse of the related case doctrine and rules:

    Plaintiffs have not found a single case in which this Court predicated an
    appearance of impropriety on application of the related case doctrine. The Panel’s
    opinion threatens to transform routine, discretionary decisions into a basis for
    judicial disqualification. Indeed, this is already happening. See U.S. v. Vilar, Civ.
    No. 05-621 (RJS), Dkt 621 (S.D.N.Y. Nov. 7, 2013) (motion seeking recusal of
    Judge Sullivan “in accordance with” the Floyd panel opinion because of
    “impropriety and appearance of impropriety” in an alleged misuse of the related
    case rule) (quoting Floyd v. City of New York, No. 13-3088).

  12. Rich, as you know from my earlier comments, I agree. This whole thing is desperately in need of adult supervision. I don’t mean to say that Judge S. and the Second Circuit panel aren’t adults for all other purposes, but this whole thing is desperately out of hand. As a member of the New York bar (and California, and Nebraska — I can’t prove it, but I may be the only one in the world with that combination) I find this horribly depressing. The debate about who threw the first stone is of little interest now. The more interesting and pressing question is who will now drop the stones and announce: “I will throw no more.” Best, Pat.

  13. After reading the Reuters article, I’ve just become a major-league fan of Judge Rakoff:

    “I have to say,” Rakoff said, “to federal judges who take an oath to apply the law equally to the rich and the poor, this excuse, sometimes labeled the ‘too big to jail excuse,’ is mindboggling in what it says about the department’s disregard of fundamental legal principles.”

    No one is talking about the elephant in the room: DoJ employees working the securities beat are interviewing for their next jobs WITH the securties industry bar, which is a better explanation of why they are looking the other way. It is called “regulatory capture.”

    Another instance that comes to mind is the failure to prosecute Clarence Thomas for his willfully fraudulent EIGA filings. (As a tax guy, I know that Thomas HAD to know that Ginni’s income from the Heritage Foundation was “non-investment income.”) This wasn’t a mere failure to disclose. When he ticked the box that said “none,” he made a materially false representation not just once, but for at least thirteen years running. A pattern of criminal (mis)conduct. And were he a lesser judge like Thomas Porteous, it would be included in his articles of impeachment:

    “Beginning in or about March 2001 and continuing through about July 2004, while a Federal judge in the United States District Court for the Eastern District of Louisiana, G. Thomas Porteous, Jr., engaged in a pattern of conduct inconsistent with the trust and confidence placed in him as a Federal judge by knowingly and intentionally making material false statements and representations under penalty of perjury …

    In doing so, Judge Porteous brought his court into scandal and disrepute, prejudiced public respect for and confidence in the Federal judiciary, and demonstrated that he is unfit for the office of Federal judge.

    Wherefore, Judge G. Thomas Porteous, Jr., is guilty of high crimes and misdemeanors and should be removed from office.”

    When a Judge named Thomas does it, it is a valid ground for impeachment, but when Justice Thomas does it, it isn’t?As Michael Tomasky of The Guardian cynically observes, in America, the demigods of our Supreme Court are above the law:

    “Obviously, Thomas is not going to be indicted over this. But how could a man – a member of the Supreme Court! – just openly lie on such a form? Lie? Yes, rather obviously. Let’s put it this way. If you or I were filling out a form, and we came to a question about our spouse’s income, and we knew very well that our spouse had income, we would check the appropriate income category. And here is one of the nine leading legal people in the United States. On what conceivable honest basis could he have thought his wife, who got up every morning and went to work every day at one of Washington’s most richly endowed think tanks, had no income? For six years?

    I wish we had a satirist, a Balzac, chronicling this age. It is beyond believability.”

    Federal judges commit crimes on and off the bench because they know that they will never be called on them — not by their colleagues, and certainly not by the DoJ. Ditto, investment bankers. This is why Judge Nottingam could openly declare at whorehouse parties that he was a federal judge. The Mafia is jealous.

  14. Novelist Samuel Butler quipped, “Authority intoxicates, And makes mere sots of magistrates; The fumes of it invade the brain, And make men giddy, proud and vain.” Samuel Butler, Miscellaneous Thoughts, as reprinted in, The Poetical Works of Samuel Butler 285 (ed. R. B. Johnson) (Geo. Bell & Sons 1893).

    I’ll say it, because no one else here really can: They are little kids in a freakin’ sandbox. Adults with unchecked power do get that way. It is as predictable as the sunrise.

    Personally, I think it is comical. Human nature is a constant, and as Jefferson put it, “judges are as honest as other men and not more so.” No one is really getting hurt; the ones who have the most egg on their face are the ones in the clown car upstairs in the Second Circus. They earned the scorn being heaped upon them, and the longer they twist in the wind, the better. Once bitten?

    If this childish squabble honestly leaves you that depressed, you have lived a charmed and sheltered life. I have become accustomed to a lot worse.

  15. John, thank you for providing this detail. I don’t have time to do so. Thus, I am particularly appreciative that you have done so. All the best.


  16. SHG,

    It would have taken a very experienced and an even tougher trial lawyer (like you) to have given Judge S. the advice to shut up and stand down. While all the lawyers representing Judge S., are well regarded, none of them make their living getting kicked around on a daily basis by trial and appellate courts while representing real people. I doubt that any of them know the pain and frustration of watching a client get skewered because the client was too hard-headed to take her counsel’s advice to go quietly. Essentially, they are all academics. While we will never know what advice they gave, I fear that the thrill of the fight with the attendant flood lights of publicity, rather than a laser-like focus on the best interests of their client, trumped everything else. If that is so, it tells us a lot about the danger of relying upon those who dabble in litigation. As someone once said in another setting, “this ain’t bean bag.”

    All the best.


  17. Judge Kopf–

    Interesting discussion. I won’t try to weigh in on the main topic since I don’t think I know enough to write intelligently. I do want to note my appreciation for your comment above about how those of us who toil in the litigation trenches every day learn that there are sometimes situations in which we must candidly (and, we hope, diplomatically) say to clients that a proposed course of action might just be a bad idea. That’s never an easy discussion, but I think we owe it to our clients (and to the rules of professional ethics) sometimes to have it.

    All best,


  18. Unilke Scalia (who uses originalism as a foil), I am an originalist, as law has to be predictable for citizens to conform their behavior to it, and “liberty has no refuge in a jurisprudence of doubt” (PP v. Casey).

    What infuriates me is that the bench has forgotten that restriction on their license. The CA2 decision is emblematic of an odious practice we see on a daily basis in our courts: Judges, constitutionalizing their personal preferences (Kozinski). If the outcome of a dispute can be predicted to a virtual certainty by finding out ‘who brung’ the judge to the dance, it isn’t “law” any more. It is, as the eloquent Judge Bork put it, “a judocracy.”

    Another log on the mounting woodpile of evidence is the CA7’s split decision in Grote, No. 13-1077, involving contraception mandates. I didn’t have to guess as to who appointed the majority, because our judges ALWAYS insinuate their views upon the law in cases that they care about. The DC Circuit did the same in Gilardi, No. 13-5069, and it will come as no surprise that Shrub nominee Janice Rogers Brown wrote the opinion. Reagan and Shrub nominees had to pass a litmus test of opposition to abortion, and their decisions are as predictable as the sunrise.

    But is it “law”?

    All I can do is laugh at the CA2 mess. What depresses me is that I have no rights under law, because judges can revoke them at any time and without warning. All the clowns upstairs in the CA2 did was make themselves look petty. Real lives and careers are destroyed by judicial caprice on a daily basis, and no one cares.

  19. DRF,

    You write: “That’s never an easy discussion, but I think we owe it to our clients (and to the rules of professional ethics) sometimes to have it.” Indeed!

    Thanks for taking the time to write. All the best.


  20. Well, a lot of people filed stuff for the 2pm “deadline”:
    • City’s opposition to petition for en banc rehearing
    • Amicus brief of 17 law professors in support en banc rehearing
    • Amicus brief of Rudy Giuliani (Former NYC mayor) and Mike Mukasey opposing en banc rehearing
    • Amicus brief of police unions opposing rehearing
    • Judge Scheindlin’s opposition to the motion to vacate (prof. Neuborne)

    Since I’m only allowed one link here without my comment getting moderated, at the risk of being self-promotional, you can find links to these briefs in my twitter feed: https://twitter.com/johnhawkinson.

  21. John,

    Again, thanks so much for your extremely helpful reporting and your willingness to share it with us. I appreciate it very much. All the best.


  22. The Ninth Circuit recently ruled that it violated clearly established constitutional law for a judge to appear before a state court through counsel in a defendant’s mandamus action and not recuse herself on remand.

    But that was (a) the Ninth Circuit, reviewing (b) the conduct of lowly state judges, rather than (c) exalted federal deities, in (d) a death penalty case, where Ninth Circuit precedent and practice require all conceivable means to subvert the state-court judgment. So presumably the same rule doesn’t apply here…

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