by Frank Pasquale - U Maryland Law School
[A]s former U.S. District Judge Nancy Gertner has suggested, what does seem to present “unusual circumstances” in this case is the odd and irregular manner in which Judges Cabranes, Walker, and Parker themselves have rushed to dismiss Judge Scheindlin from these cases so aggressively and swiftly. While the motions panel purports to base its decision upon a review of the “record,” none of the information upon which it relies actually appears in the judicial record. Moreover, the panel also offers no explanation for its decision to launch an immediate strike to oust Judge Scheindlin from the case, as if there were a grave and imminent threat to the integrity of the judicial process simply by having her name associated with it, rather than awaiting full adjudication of the merits to fully ascertain what the precise circumstances of their remand ultimately would entail. As U.S. District Judge Richard Kopf has noted, “[i]f 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.”
The panel’s haste is particularly odd given its decision to grant to the City’s stay motion. After all, as Professor Judith Resnik observes, because the panel’s decision to grant the stay “left the district court with nothing to do” while the appeal is pending, there was no urgency for the panel to determine right away who would preside over the case upon remand.Those who followed the Oneonta case in the 1990s may be unsurprised by the result here. But it is nevertheless deeply troubling.
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