Not with a bang but a whimper

The Second Circuit has now shut down the circus it brought to town.  It denied Judge Scheindlin leave to appear. It reaffirmed its order assigning a new trial judge, but the appellate judges took much of the sting out of the earlier order. See here and here. Indeed, at one point, they acknowledged that Judge Scheindlin is “a long-serving and distinguished” district judge. However, the appellate judges didn’t have the decency to apologize to Judge Scheindlin. That would be asking too much I suppose.

These opinions by Judges Jose Cabranes, Barrington Parker and John Walker trying to gracefully extricate themselves from the debacle they created reminds me of T.S. Eliot’s concluding lines in the poem aptly titled The Hollow Men:

This is the way the world ends
This is the way the world ends
This is the way the world ends
Not with a bang but a whimper.

© T S Eliot. All rights reserved


PS.  Special thanks to John Hawkinson.

20 responses

  1. A shot to the gut, not a passing nod. The Court reaffirmed in the strongest terms that they still believed Judge Scheindlin to have been biased and sent a message to the next judge to not decide the case as she had.

  2. Sorry, Judge Kopf, but they have not shut down the circus yet. Still pending in this ridiculous and frightening abuse of power are the City’s motion to vacate Judge Scheindlin’s decisions entirely, and the police unions’ motion to intervene. I would not be surprised if the Circuit granted either or both, thus taking the case out of our new mayor’s hands altogether, which is clearly what these judges want. Why else would they reassign the case now, instead of waiting until they decide the appeal on the full record and after briefing and oral argument? The new district judge has no jurisdiction over the case, and hence nothing to do, so long as it’s in the Circuit Court, so what possible reason could they have for doing so now? They missed their chance truly to drop the whole thing, and now instead we wait for the other shoe to drop.

    Ugly, very ugly….

  3. Ahh, The role of the district judge, from the point of view of the circuit judge, to be

    Deferential, glad to be of use,
    Politic, cautious, and meticulous;
    Full of high sentence, but a bit obtuse . . . .

    High sentence, of course, only if you ‘splain yourself out of the presumptively reasonable range.

  4. Michael,

    I am tired (and old) and I’ve been in a jury trial all day. We had a jury question at 6:03 pm and the lawyers and I were stumped, so we will assemble early tomorrow morning. In other words, I am certainly more than normally “obtuse.”

    So, you understand my stupor. Now, tell me, my friend, what the hell does your comment mean?

    All the best.


  5. Tom,

    Well done!

    By the way: “I just realized my name is an anagram for ‘toilets'” — T.S. Eliot, on his deathbed. If our boy really said it, what a great exit line!

    Thanks for writing. I appreciate it. All the best.


  6. Richard,

    Judge Scheindlin and her lawyers apparently think the City lost the bid to set aside her decisions once the Circuit found no actual bias on her part. See here.

    All the best.


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  9. I look forward to criminal defendants in the Second Circuit, convicted by juries, filing mistrial motions for remarks made by their judges years before their trials began. I expect the Circuit will of course give them the same pass on showing actual bias and on failing to notice the years-old statements, and just go ahead and grant such motions now. The idea that the counsel for the City of New York somehow managed to soldier through the entire lawsuit including the trial and never notice the bias of Judge Scheindlin amazes me. No, wait, not “amazes.” Another word. One with more force. “Boggles the mind”? No, it needs more of a scatalogical import.

  10. A fuller context; it’s another from TS Eliot: Love Song:

    No! I am not Prince Hamlet, nor was meant to be; Am an attendant lord, one that will do To swell a progress, start a scene or two Advise the prince; no doubt, an easy tool, Deferential, glad to be of use, Politic, cautious, and meticulous; Full of high sentence, but a bit obtuse; At times, indeed, almost ridiculous- Almost, at times, the Fool.

    Eric Hines

  11. [T]he appellate judges didn’t have the decency to apologize to Judge Scheindlin. That would be asking too much I suppose.

    Or maybe not. Given what passes for a 21st century “apology”–expressions of pseudo-regret for the outcomes of misbehavior, rather than for the misbehavior itself, the 2nd might have actually done better not essaying an apology.

  12. Federal judges, apologize? Perish the thought!!! As a class, They would rather gnaw their arms off.

    At the risk of fracturing that classic line from Love Story (as opposed to Love Song), “Being a federal judge means never having to say you’re accountable….”

  13. From Prufrock, instead of the Hollow Men, c. l 115, I believe. If you go to the original, the reason for the ending elipsis will be obvious.

  14. This thing is going away because the adults in the room just happen to be the politicians. Oh! the red-hot irony! Passing strange, that! 🙂

    How is the Panel going to resolve this mess if, before the close of briefing (I haven’t been following as closely as others, but my understanding is that the case has not been fully briefed at the appellate level), they have signaled to the world that they have already prejudged the case?

    A biased panel, taking a judge to task for being biased? Only in America! Two Bible verses come to mind:

    “Differing weights and differing measures–the LORD detests them both.” Prov. 20:10 (NIV)

    “So when they continued asking him, he lifted up himself, and said unto them, He that is without sin among you, let him first cast a stone at her.” John 8:7 (KJV)

    Judges behave badly because they can, owing to the fact that they are not accountable to anyone. As the incomparable Thomas Jefferson put it:

    “At the establishment of our constitution, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account.”

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  17. So sayeth former Judge Duckman:

    This was a big case back in the day and raised significant issue of how a Judge should react and/or be defended (or not). From the Daily News editorial (not necessarily a bastion of legal thought but it’ll do for a quick Google search):

    They also predicted the removal action would have a chilling effect on other judges. “Judges are not supposed to be looking over their shoulder at what the government might say when they rule,” said Stephen Gillers, a professor of legal ethics at New York University School of Law.

    Judge Duckman, I note, like you, he had a newsletter (or blog in today’s parlance), but you’re a bit more politic in your reasoning and judgment.

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