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:
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.