The Elephant in the Second Circuit

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.



17 thoughts on “The Elephant in the Second Circuit

  1. pj_cryptostorm

    Because, in today’s America, it’s no longer necessary to pretend.

    Because, post-Parallel Construction, the charade of “justice” has gone from threadbare to purely ephemeral. Why bother acting as if judges are supposed to be impartial… when they are most assuredly not?

    Someone has to be first out the gate in the smackdown of judicial dissent to LEO supremacy. It may seem odd, that first time… but it’s a harbinger – and intended as such. What is, as the first of its kind, aberrant becomes merely routine if repeated.

    Or: call it a shot across the bow, not just in the extant case but far more broadly. Preemptive warning: don’t think that old-fashioned “impartial justice” crap files in the era of War On Terrorism/Drugs/Minorities/Privacy/whatever else comes to mind… nope, not now – we’re over it. The charade has ended, time to start taking off the costumes and settle down to the real business of building the most well-resourced police state our planet has ever seen. Those who get in the way, get smacked down.

    That’s the new rules. Not the same as the old rules, not really.

    Such is one read of things, in any case, from the deep end of the pool…

    1. SHG Post author

      This is why I ask this question of Judge Kopf. One view is easy for me to see. Is there another? Is there another credible explanation? If so, I don’t see it, but in my effort to be fair, I want to know what it is. So I look to Judge Kopf to tell me.

  2. Richard G Kopf


    I am in in a jury trial. I will try to answer your question(s) later today or more probably tomorrow (Wednesday, November 6, 2013) by a post on my blog. All the best.


    1. SHG Post author

      Trial? They still do those things?

      Seriously, Judge, thank you. I sincerely seek your perspective on this ruling.

    1. SHG Post author

      Lynne Stewart and I were trying a case in EDNY before Judge Eugene Nickerson (dec.). Judge Nickerson tended to turn his chair around so that the back was facing the room. He did so regularly.

      During my cross, there was an objection by the assistant. And then . . . silence. At least 10 second of utter silence went by. We all looked at each other. I poked Lynne. She stood and said, “Ummm, your honor?” A few more seconds went by and then, in a stentorian voice, Judge Nickerson said, “I am not sleeping. I’m thinking. Overruled.”

  3. Wheeze The People™

    Well, in fairness to Judge Kopf, one thing judges should be trained not to do is speculate. So “mystifying” is not an inappropriate adjective to use to describe the debacle, from his vantage point, is it?? Though “Unintentionally, I am sure” is certainly a speculative statement, and likely not true. But in the interest of maintaining the oh-so-important judicial “social compact”, it’s not so surprising. Otherwise, he may be sitting in the corner with Judge Scheindlin at the next judge’s dance . . .

    1. SHG Post author

      Ah, Wheezy, the problem is once you open the door to expressing reasoning, then reasoning is what one expects, even when it’s discomforting. If not, the hole is glaring.

  4. Andrew

    Forgive me if I’m missing something, but it seems that you are asking Judge Kopf to speculate as to the motives of the 2d Cir. panel. Not only does this not seem possible, but to ask a judge to speculate as to other judges’ motives seems inappropriate.

    1. SHG Post author

      It’s not that you’re missing anything, and to some extent, you may be right that I’m asking too much of Judge Kopf. But my reasoning is that, given his agreement that this was a sua sponte, cheap shot and unnecessary (and I add gratuitous, as it serves only to impugn Judge Scheindlin at this point and it appears unlikely that the case will ever see a merits decision), I cannot conceive of any legitimate reason for the panel to issue such a ruling. None. I can conceive of plenty of bad reasons, but not a single legitimate one.

      What I hope to learn from Judge Kopf is whether he sees any legitimate basis for the panel to have done this. As I said, I see none, but maybe I’m missing something.

  5. Andrew

    So you’re saying that you don’t really expect an explanation from Judge Kopf other than to admit that there is no legitimate motive for the ruling? Then why isn’t “mystified” an adequate reaction? He just doesn’t know why they would have made such a decision.

    1. SHG Post author

      That’s not what I’m saying. Judge Kopf has already expressed his opinion that this was a cheap shot at Judge Scheindlin. But a cheap shot can still be for an otherwise legitimate purpose. Yet here, there was no application before the court, no fact deduced at a hearing, no briefing, no opportunity to be heard. While there is some suggestion that the panel may have issues with Local Rule 13, that doesn’t explain why they used this case to raise it sua sponte, or why they dumped on Judge Scheindlin because they have issues with Local Rule 13.

      For Judge Kopf to say he’s mystified suggests that there may be a legitimate purpose to this ruling, but he can’t be sure what it is. My question is if there is a legitimate purpose, then what would it be? Otherwise, this was a not merely a cheap shot, but one improperly motivated by the judges on the panel. Rather than leap to the conclusion that comes naturally to criminal defense lawyers, I hope to find out if there is any conceivable legitimate purpose behind this cheap shot. Or is this truly improper and ill-motivated. Did the 2d Circuit rule for improper purposes? If there is no legitimate possibilities, than we’re left without an alternative conclusion.

  6. Lorin Duckman

    I will remain alone as a judge who tried and failed. Prosecutorial abuse. I may have butted heads with them, but not because I was biased. 20 years of Rudy and Mikey. Kerik now seeing the light from the inside. We ask why the jails are full and people of color or those who look different cannot walk the streets? Who picked the Judges? And, who amongst them would go against the system?

    1. SHG Post author

      Hey Lorin. Good to hear from you and hope all is well. Yes, you tried and they handed you your ass. You know it all too well.

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