Thursday, November 14, 2013

Second Circuit retreats on Judge Scheindlin

Legal Ethics Forum: Second Circuit denies relief requested by Judge Scheindlin: The Second Circuit panel that removed and criticized Judge Scheindlin has backed off its criticism of her.  Its new tone will help to defuse the situation.  I posted an extensive comment on Legal Ethics Forum.  It follows.  - GWC
By removing the judge who had found the NYPD’s stop and search policies unconstitutional, a panel of the Second Circuit spawned a maelstrom five days before a strong critic of the NYPD’s patrol practices was elected Mayor. Denounced for running “afoul” of the Code Conduct for United States Judges, District Judge Shira Scheindlin demanded to be heard.
The City of New York filed a Saturday midnight motion demanding that Scheindlin's lack of impartiality required that her judgment of liability be immediately vacated because the NYPD was injured by the very existence of the order on the docket - despite being stayed pending appeal. The plaintiffs moved for an en banc review. A raft of intervenors followed including police unions, the former Mayor Rudolph Giuliani, and former U.S. Attorney General and District Judge Michael Mukasey.
Having instigated a brawl that threatened to disrupt the transition to power of the new Mayor Bill De Blasio, the Second Circuit panel has now moved to defuse the situation. The judges (Walker, Cabranes, and Parker) now describe Scheindlin as “a long serving and distinguished judge” and they “now clarify that we did not intend to imply in our previous order that Judge Scheindlin engaged in misconduct cognizable either under the Code of Conduct or under the Judicial Conduct and Disability Act, 28 U.S.C. §§ 372, et seq.”
The new “superseding order” lacks candor, and regrettably fails to apologize for the now-abandoned finding of misconduct. The panel's retreat demonstrates that its "nostra sponte" order was an impulsive and injudicious intervention in an explosive issue of the eve of an election in which the contested policy was a major issue. The three judges’ initial order did more than “imply” misconduct.
The panel had said “we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 (“A judge should avoid impropriety and the appearance of impropriety in all activities.”); see also Canon 3(C)(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”), and that the appearance of partiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s “related case rule...and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.”
Nonetheless the latest orders are welcome. Having retracted their "conclu[sion]" of misconduct, the denial of standing to the Judge who enlisted prominent academic lawyers on her behalf is appropriate. Describing their new order as “superseding” the Court of Appeals panel now explains “We conclude only that, based on her conduct at the December 21, 2007 hearing and in giving the interviews to the news media in May 2013, Judge Scheindlin’s appearance of impartiality may reasonably be questioned within the meaning of 28 U.S.C. § 455 and that “reassignment is advisable to preserve the appearance of justice.” There are other motions to be resolved but it appears that order may soon be restored.  - GWC
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