A thoughtful editorial on the Second Circuit and Judge Scheindlin

“The entire episode reminds us of the virtues of care and patience. Four judges of stellar reputation have regrettably demonstrated that impatience and impulsiveness against which the virtue of judiciousness counsels.”  So concludes a much longer editorial entitled “Judicial Patience” written by the editorial board of the New Jersey Law Journal. That board includes two former Associate Justices of the NJ Supreme Court, two former Presiding Judges of the Appellate Division, and a former Governor. It is a distinguished group of thoughtful  people.

I commend the full editorial for your consideration. It is very much worth reading.


It’s Baaack

Please read “It’s Not Dead Yet” at Simple Justice.  Among other things, Scott proves how wrong I was when I wrote “Not with a bang but a whimper” regarding Judge Scheindlin’s dispute with the Second Circuit. Now six retired federal district judges with 86 years of combined experience (together with a bunch of law professors) weigh in supporting Judge Scheindlin and urge the Second Circuit, en banc, to reconsider the Panel’s October 31, 2013, Order and the November 13, 2013, Opinion and vacate the Order to the extent it reassigns the Floyd and Ligon matters from Judge Scheindlin to another judge of the Southern District of New York.


It isn’t only left-leaning judges who get into “ethics” trouble

During the discussion last week about Judge Scheindlin. and the Second Circuit, several commentators suggested that it was only left-leaning judges who seemed to get into ethics problems. I did not think that was so, and today I will provide an example of why I don’t think that is so.

Consider the most recent attack on Judge Diane Sykes of the Seventh Circuit. She interviewed Justice Thomas on stage at the Federalist Society’s recent dinner “gala.” Because she allegedly did that at a “fund-raiser,” Representative Louise Slaughter, Arn Pearson, Vice President for Policy & Litigation, Common Cause, and Nan Aron President, Alliance for Justice filed a complaint with the Seventh Circuit against Judge Sykes. See here for the complaint. The only problem was that the dinner lost money and did not serve to raise funds, so said the Federalist Society. See here.

First, two observations about the creepy Federalist Society and its equally strange double, the American Constitution Society (ACS). Here they are:

* The Federalist Society and the ACA are like the Girl Scouts and the Camp Fire Girls of my youth. They wear matching uniforms, parade around mouthing similar slogans, and specialize in making macaroni art that is inedible. In the main, however, they are harmless.

*For among other reasons, I never attend Federalist Society or ACS gatherings ’cause I don’t appreciate fine wines. See attached photo.

Second, just as Judge Scheindlin was subjected to an allegation that she violated the Code of Conduct for United States Judges, Judge Sykes was targeted during the same time frame with an allegation that she too violated the Code. Judge Scheindlin and Judge Sykes do not share the same views on many things. But, neither one deserved the smack.

Finally, and what follows is the important point. The next time you hear that a federal judge has violated the Code of Conduct, think about that claim as a “drive-by shooting.” 


RGK's box wine on the beer 'frige in the garage

RGK’s box wine on the beer ‘frige in the garage

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.

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.


End it quickly

If the Second Circuit has any sense, an order like the following would be entered today:

Various motions are pending. One has been filed by the district judge. One been filed by the appellees and one has been filed by the appellants. They all seek further and other relief as a result of our prior order staying these cases and requiring that a new district judge be assigned.

After due consideration, we deny all the motions. We also strike from our prior order the finding that the trial judge violated the Code of Conduct. However, that portion of our prior order staying these matters and requiring that a new trial judge be assigned to these cases remains effective. Finally, we refer these cases to the Clerk of Court for reassignment to a new panel. In doing so, we note that the Court en banc has this date denied all requests asserted in the motions filed by the trial judge and the parties for rehearing en banc.

s/Jose Cabranes, Barrington Parker and John Walker


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.


In answer to Scott H. Greenfield regarding the Second Circuit’s treatment of Judge Scheindlin

Scott H. Greenfield (SHG) is a criminal defense lawyer from New York. He has a popular blog entitled “Simple Justice.”  He recently wrote about my post entitled “Cheap Shot” which dealt with Second Circuit removal of Judge Shira Scheindlin from the “stop and frisk” cases.  His post was entitled “The Elephant in the Second Circuit.”

The Context

SHG thought that I went too easy on the Second Circuit even though I was (and remain) very critical of the short order kicking Judge Scheindlin off the case. Essentially, he thought I was credulous and that I failed to address the real motivations of the judges on the Second Circuit. Wearing my blogger hat, he wanted me to honestly explain “why” the judges did what they did.

In this post, I propose to answer SHG’s “why” question because I think I now have a plausible explanation, although it is obviously speculative. But before I provide my answer to the “why” question, I reprint SHG’s post in full below so the reader has the complete context:

It appears that there isn’t a single, credible voice that wasn’t astounded and offended by the Second Circuit’s needless and brutal sua sponte attack on Judge Shira Scheindlin in the process of granting a stay to the City in Floyd v. City of New York.

Even in the New York Times’ Room for Debate, there was agreement that this was an outrageous smack, a gratuitous beating of a judge who was denied the opportunity to explain, and perhaps had nothing to explain anyway. It was seen as undermining judicial independence in a hotly political issue, but worse, an insertion by the Circuit panel, Judges Jose Cabranes, Barrington Parker and John Walker, for no conceivably legitimate purpose other than to teach Judge Scheindlin a lesson.

Why? Why would they do such a thing?

When Judge Richard Kopf posed the question at his blog, he noted that he would follow up with his thoughts after others expressed theirs. This struck me as utterly fascinating. Sure, I knew what I thought about the ruling, but the Senate never confirmed me. I eagerly awaited Judge Kopf’s thoughts:

A Cheap Shot.

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.

No question about it. But that’s easy. Everyone agrees that this was a cheap shot, a low blow, a needless, gratuitous smack. But why? The three judges on the panel are neither stupid, inexperienced nor impetuous. They did not do this thoughtlessly. This was deliberate, and they certainly knew the reasons why not to do it, and did it anyway. So why?

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.

Unintentionally? Seriously, Judge? Are you really saying that?*

Frankly, this whole debacle is just mystifying to me.

You lost me. This was where the rubber meets the road, where the question of how far out on a limb you would go to speak truth to power would be answered. I hoped for an answer, because without it, I’m left to my own devices, my own fertile imagination.

While you’re no “right-wing nutjob,” you also do not see the system through the eyes of a criminal defense lawyer. It was important to know what your eyes saw so that those of us who sit at the table farthest from the jury can learn whether our greatest fears are justified.

To say you’re “mystified” is a cop-out (no pun intended). Some have speculated that this ruling comes from a “reliably right-wing panel” sending a message to a judge perceived as insufficiently kind to law enforcement and unduly inclined to stymie those who elevate control over civil rights. Are they wrong? Are they the nuts?

Let’s get real here: Judge Scheindlin is the government’s worst nightmare. She gives the defense, the accused, the black, the Hispanic, a fair shake. She has demonstrated throughout her career that she will not let agents or assistants roll over the Constitution. They despise her for not being a team player, and dread a case getting sent to her courtroom.

As for Local Rule 13, the related case rule, she did nothing that isn’t done daily. Worse yet, most of the time the related case rule works to the government’s favor, as judges who sign search and wiretap warrants get the cases when the takedown comes, making it essentially impossible to obtain neutral review of their grant of the warrants. The government survives on this ploy, and we all know it. This isn’t about the Circuit panel beating up on the local rule.

So why? We all agree that the panel judges aren’t a bunch of clueless dopes who didn’t get what they were doing, or didn’t appreciate (in this case in particular) the significance of their ruling in political terms. This case is huge, millions of New Yorkers huge, a mayoral campaign huge. There is no way they didn’t appreciate it. There is no way you don’t appreciate it.

To say you’re “mystified” is to hide. While it’s fair to say you didn’t have a drink with Jose Cabranes and chat about his purpose, it’s not fair to leave it at “mystified,” as this goes to a core value of integrity of the judiciary in general and the Second Circuit in particular.

Why, Judge? Why?

And you came up with nothing.

* Subsequent to posting, it was suggested that I’m being “unduly harsh” on Judge Kopf. I hope not, as that is not at all my purpose. Rather, I am of the view, based on his writings, that he won’t be put off by my lack of obsequiousness; as I first wrote about engaging Judge Kopf, it’s awkward. While I won’t allow him to be attacked here, I hope that he is open to challenge in his blawger bathrobe instead of requiring the formality of his judge’s robes.

Whether I’m correct will be seen. But I add this to point out that I don’t question out of disrespect, but just the opposite. I hope this doesn’t offend the judge.

Scott H. Greenfield, The Elephant in the Second Circuit, Simple Justice  (November 5, 2013).

Kopf’s Answer to SHG’s “Why” Question

I will be direct and will try not to equivocate, but understand, please, that my answer amounts to a guess.  I will outline my thinking and then answer SHG’s “why” question. Here goes:

*After the post that SHG criticizes, I learned of the following article: Katherine Macfarlane, The Danger of Nonrandom Case Assignment: How the Southern District of New York’s ‘Related Cases’ Rule has Shaped the Evolution of Stop-and-Frisk Law, (LSU August 22, 2013).  I called my readers’ attention to this post in the comment section. See, e.g., comment in response to Orin Kerr, November 4, 2013 at 5:55 am.

*Unlike the short and unexpected order removing Judge Scheindlin, Ms. Macfarlane’s article is a public and intellectually coherent analysis of the “relatedness” question in the precise matter before the Second Circuit and it presents an arguable case for a lack of impartiality on the part of Judge Scheindlin in the precise matter before the Second Circuit. McFarlane’s 45-page article appeared shortly (2 months) before the Second Circuit issued the surprise ruling. It was not cited by the Second Circuit, but the Second Circuit did cite three sources (newspaper articles) cited by McFarlane.

*After the post about which SHG is critical, I received an unsolicited e-mail from MaFarlane on Sunday, Nov 3, 2013 at 5:13 PM. She kindly gave me permission to reprint the contents of it on Monday Nov 4, 2013 at 8:57 AM. I did so on November 4, 2013 at 10:43 am. See here. To make things easy, I reprint the e-mail again, to wit:

Dear Judge Kopf,

In light of your recent blog post, I thought you might be interested in my attached article, posted on SSRN in August, and accepted for publication in the Michigan Journal of Race & Law in September. It’s about the SDNY’s related cases rule and its role in stop-and-frisk litigation. Curiously, three of the non-legal sources I cited to–an article by Jeffrey Toobin in the New Yorker, an article by Joe Goldstein in the New York Times, and an article by Mark Hamblett in the New York Law Journal–were also cited by the Second Circuit in its recent order kicking Judge Scheindlin off the stop-and-frisk cases. The “appearance of impartiality” idea also pops up in my article. This is either an incredible coincidence, or else, a clerk read my SSRN post. Either way, I hope you find my article of interest.

The Second Circuit’s decision to reassign the cases makes no sense to me, as Judge Scheindlin merely followed the local rules. As to whether the local rules invite manipulation of the case assignment process is an entirely different question that my article attempts to tackle.

Best regards,

Katherine A. Macfarlane
Teaching Fellow and Assistant Professor of Professional Practice
LSU Paul M. Hebert Law Center

*While Macfarlane’s piece provided a detailed justification for a fair critique of the “related” case rule and Judge Scheindlin’s use (and possible abuse) of the rule, Scheindlin’s conduct had long been the subject of debate in New York legal circles.  As one commentator to this blog later put it, “In New York legal circles (especially around Foley Square), . . . Judge Scheindlin’s abuse of the related-case protocol and her interviews raised serious partiality concerns [and were well known]. The press pieces [Macfarlane] cites were widely read and discussed at the time of their publication, especially the NYT piece about how Judge Scheindlin leveraged Daniels to get not only Floyd but also Davis and Ligon.” Anonymous says: November 5, 2013 at 12:09 pm.

*The coming New York mayoral election threatened to moot the appeal before the Second Circuit and deprive the Second Circuit of a chance to flog Scheindlin and the “related” case rule.

*All of the judges–from Judge Shira Scheindlin to the appellate judges, Judges Jose Cabranes, Barrington Parker and John Walker–are highly regarded.  See, e.g., Almanac of the Federal Judiciary–a rich (and expensive) resource providing detailed accounts of what knowledgeable lawyers say privately about each federal judge. (Federal judges typically deny reading the Almanac but don’t believe them.)  In short, I remain fully confident in the bona fides of all the judges involved in this sad story.

*The answer to SHG’s “why” question is this:  The appellate judges were furious and thought they needed to send an unmistakable message. But it is not the message skeptics think it was. The removal of Judge Scheindlin was driven by a sort of rage over the perceived manipulation of the local rule on “relatedness.” It was intended as a deterrent to any trial judge, including especially Scheindlin, who games the system by screwing with the Holy Grail of judicial neutrality–the random assignment of cases. I suspect that indignation had been bubbling under the surface at the Second Circuit for a very long time and it erupted without warning, much like a volcano, under the increased pressure of the “stop and frisk” cases that were likely to become moot. The intemperate and easily misunderstood order of removal was not, however, borne out of a Machiavellian scheme to take sides in the litigation before the Second Circuit or to silence Judge Scheindlin (or any other federal trial judge) on the merits of civil rights cases “properly” before her but yet to come.

*In sum, genuine anger over Judge Scheindlin’s use and perceived abuse of the “relatedness” rule rather than some hidden calculation worthy of the Prince is the solution that best fits Occam’s razor.


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