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.


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.


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