A cheap shot

Yesterday, I asked: What do you think about the Second Circuit’s removal of Judge Shira Scheindlin? Today, I will provide the short version of my views.

As I have said before, federal trial judges know their place. We are the TTT of the federal judiciary. When the Circuit tells us to jump, we do so even if we don’t much like it. But, in return, we expect only one thing: no cheap shots.

The Second Circuit’s spontaneous decision, apparently without briefing and coming out of the blue, was factually predicated upon a “relatedness” question mentioned in the record before the Court of Appeals and in the footnoted NYT article referred to by the Circuit. But, if that was really the reason for the trial judge’s removal, the decision was both wrong, and, worse, unnecessary.

Judge Scheindlin was holding a hearing where the plaintiffs sought to reopen a case. The judge thought the case could not properly be reopened, but a new case could be filed as a “related case.” She said so on the record. The NYT article mentioned the judge’s statement. Apparently, the case that the judge suggested be “related” when filed is one of the cases before the Circuit. The Second Circuit thought the judge’s statement reflected a lack of impartiality.

The reason we have relatedness rules in the district courts is to avoid treating similar cases dissimilarly and because it wastes judicial resources by duplicating effort when two judges deal with similar issues.  The failure to enforce relatedness rules can cause a huge problem for the lawyers, the trial judge and the appeals court. The fact that Scheindlin told the lawyers that they could file a “related” case is exactly what I would have done. Indeed, I have done something similar in an extraordinarily high-profile case.

I authored both “partial birth abortion” decisions ultimately decided by Supreme Court. Dr. LeRoy Carhart brought both cases. In the second case, dealing with the federal statute, my chambers was notified by Dr. Carhart’s lawyers in advance that they would be filing suit and seeking an immediate emergency temporary restraining order the moment the President signed the bill. In turn, my chambers notified the United States Attorney’s office that suit would soon be filed and an emergency hearing would take place quickly thereafter.

I was then Chief Judge, and I instructed the Clerk to treat any such new case “as related” to the first Carhart case. That the cases were “related,” as Dr. Carhart’s lawyers later indicated when they filed the second suit, was simply not debatable. Indeed, the federal statute purported to expressly rebut my earlier factual findings. But, here’s the pertinent point for this discussion:

I affirmatively acted to intervene in the random assignment of cases, for among other reasons, because our local rule required enforcement and because requiring a new judge to take the nearly identical second abortion case would have unnecessarily burdened that judge who would have had to “reinvent the wheel” with little or no time to get up to speed. By then, I knew more about gynaecology than any man, who is not a doctor, has any right to know. Simply put, trial judges should be concerned with “relatedness”–for Christ’s sake, it’s our job.

Let me give you another example. I now have a very high-profile case–actually a series of cases that have now been consolidated. They became terribly screwed up because the lawyers did not initially “relate” them and the Clerk’s office failed to catch the problem. Those omissions resulted in conflicting decisions by my colleague and me on the same facts regarding qualified immunity as it pertained to the same defendants. Both went up to the Circuit at the same time as separate cases. Crazy! Costly! Wasteful! Inconsistent! Unnecessary! Embarrassing!

So, the Second Circuit’s removal of Judge Scheindlin because she told the parties to “relate” cases is dubious at best. Actually, I was going to write that it was “bullshit,” but decided against that description.

What then is going on? The Second Circuit judges are excellent judges and I am sure they are sincere in their concern. But the reason they have given for their unprecedented action is laughable. Something else must be going on. We are all left to speculate what the real reason might be. What is worse, we are confronted with the unhappy result that the appellate judges themselves are now open to the assertion (wholly rejected by me) that it is they who have a political or policy agenda.

And the startling thing is that this whole damn thing was unnecessary. The appellate judges could have granted the stay, and in the stay order provided that the trial judge “shall take no action inconsistent with the stay in this case or in any related cases.” That would have preserved the status quo while avoiding the unnecessary criticism of the trial judge.

If the appellate judges were worried about the judge’s impartiality, they could have called for a full exploration of that matter at a later date. At the very least, following a more regular process would have shielded the appellate judges from the assertion that they were acting as political hacks rather than impartial appellate judges unconcerned with whose ox was being gored. Frankly, this whole debacle is just mystifying to me.

Let me sum up. Unintentionally I am sure, the panel of highly regarded and very smart judges on the Second Circuit that too hastily disqualified Judge Scheindlin, herself a highly respected trial judge, fractured the unwritten but critical social compact between federal trial judges and federal appellate judges that should bind those judges together as they seek to fulfill a common purpose. In short, “eating your young” is not a good way to foster collegiality.


Low blows













Photo credit:  Library of Congress. Bain News Service, publisher.  [French boxer Charles “Little Apache” Ledoux and Frank Fleming]

I have made my share of mistakes.  Some of them have been humdingers.  (In later posts, I intend to discuss a few of those screw-ups.)  As a result, I am no stranger to reversals.  While I wince, I also understand that it is the job of the superior judge to correct the errors of the inferior judge.  Most of the time, and this is particularly true at the Eighth Circuit, appellate judges are fair and respectful in their description and explanation of the trial judge’s mistaken views.  But that is not always the case.

Trial judges must learn to take low blows from their superiors.  It goes with the territory.  When that happens, the sensible course of action for the trial judge in most situations is to shut up and go about business as usual.  Take it on the chin and move on.

There is something to be said, however, for having a backbone.  That is, once in a blue moon, a counter punch is in order.  An upper cut may provide general deterrence.

In the first Carhart case, Justice Anthony M. Kennedy took a cheap shot.  In dissent, the Justice wrote:

The United States District Court in this case leaped to prevent the law from being enforced, granting an injunction before it was applied or interpreted by Nebraska. . . . In so doing, the court excluded from the abortion debate not just the Nebraska legislative branch but the State’s executive and judiciary as well. The law was enjoined before the chief law enforcement officer of the State, its Attorney General, had any opportunity to interpret it. The federal court then ignored the representations made by that officer during this litigation.  . . .

Stenberg v. Carhart, 530 U.S. 914, 978-979 (2000) (citations omitted).

Giving due allowance for Justice Kennedy’s evident anger at getting outwitted by his colleagues in Casey,  the “United States District Court” did not do any of the things that Justice Kennedy ranted about in his dissent.  Even a cursory look at the record would have shown that the Justice’s statements were untrue.  Several examples are illustrative.

Instead of granting a temporary restraining order without hearing from the other side (as is the practice in many federal courts), I heard from Nebraska.  I also held a preliminary injunction hearing and then a trial where everything the parties wanted me to consider was considered.  I “ignored” nothing.  As for considering the views of the three branches of state government, the Nebraska Attorney General was a party to the litigation as was the head of the relevant state executive department that was tasked with administering the law.  No party asked me to certify any questions to the Nebraska Supreme Court to obtain a ruling on the meaning of the challenged statutes.  Perhaps Justice Kennedy did not know it, but the Nebraska Supreme Court typically refuses to answer certified questions posed by federal courts.  And that is particularly true where the facts are in dispute.  Still further, I asked the parties whether they wanted me to appoint an independent expert so I would get an objective assessment of the medical issues.  Both sides declined.  Over Plaintiff’s objection,  the ruling was “as applied” to Dr. Carhart only.  In short, I did not “leap” to prevent the law from being enforced and any fair reading of the record would have made that plain.

More than 12 years have passed since Justice Kennedy wrote the words I highlight now. They still sting.  Although the assertion may seem dubious and even laughable, this post is not primarily about me.  I am a senior judge and I will be gone soon.  Justice Kennedy is no spring chicken either.

I am more concerned with the future and the implicit but critical social compact that binds judges in the same system together when trying to fulfill a common purpose.  If, in this cynical age, federal trial judges are to faithfully perform the difficult and sometimes unpopular roles assigned to them by their superiors, it is not too much to expect that they will be treated with more fairness and respect than Justice Kennedy displayed in his vitriolic dissent.*

*I am not the first person to describe that dissent as vitriolic.  See Jeffrey Toobin, Swing Shift, p. 6, New Yorker (September 12, 2005) (archived).


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