Judge Shira Scheindlin is a soft-spoken, very deliberate judge, hardly the sort who would yell at counsel or say something to skewer a lawyer in front of a client to embarrass. It’s not that she doesn’t make pointed comments, but she does so softly and with surgical precision. But she now makes clear that she’s a tough woman underneath, and she won’t be hung out to dry without a fight.
Yesterday, Burt Neuborne, the director of NYU’s Brennan Center, filed papers seeking reconsideration of the “precipitous” order removing Judge Scheindlin from Floyd and Ligon, the stop and frisk cases, The papers are here.
While the tenor of the papers is calm and dignified, as one would expect, there is nothing about them that suggests any reticence to challenge this “cheap shot,” or smacks of an apology for anything. Indeed, the papers reflect a three-prong approach, that the Second Circuit panel of Judges Cabranes, Parker and Walker were wrong on the law, the facts and procedure.
By concluding, sua sponte, that Judge Scheindlin ”ran afoul” of the Code of Conduct, Canons 2 and 3(C)(1), suggesting that there was both an actual and intentional breach of her ethical duties, the removal goes beyond some amorphous holding that justice would be better served to have the case remanded to a different judge, but essentially concludes that Judge Scheindlin committed a breach. All without a fully formed factual basis, legal briefing of the issues, an opportunity for Judge Scheindlin, whether through counsel or amicus, to defend herself, and still most inexplicably, without anyone questioning Judge Scheindlin’s impartiality.
As noted in the papers, even when Judge Cabranes, during oral argument on the stay raised, on his own and for the very first time, the judge’s interviews and colloquy during Daniels about Local Rule 13, neither party picked up the ball and ran with it. Except for Judge Cabranes, the parties made no suggestion that there was a breach of the Code of Conduct or that Judge Scheindlin should be disqualified.
The motion seeks reconsideration by the ruling panel of judges, or in the alternative, by the Circuit en banc, which is very rarely given in the Second Circuit (though this situation is about as rare as it gets). It seeks the opportunity for Judge Scheindlin to appear through counsel or to have her position defended by amicus curiae, another route for a district court judge to present her position in a manner that doesn’t create the unseemly situation of naked judicial mud-wrestling, though it may be too late for that.
One issue that has largely been taken for granted up to this point, but is strenuously disputed in the papers, is that the media characterization of Judge Scheindlin’s statements during Daniels, giving rise to the suggested that she abused Local Rule 13 (the related case rule), is just plain wrong. A few lines, taken out of context, were used to give the appearance that she was soliciting a new suit to come before her. which she would be able to seize under the rule.
While I haven’t yet seen the Daniels transcript, I have heard from a few lawyers now, even academics, that a contextual reading of what happened in Daniels shows the characterization to be completely unreasonable. And indeed, in the papers before the Circuit, Burt Neuborne argues that “no reasonable person” could conclude that Judge Scheindlin in any way solicited the actions based upon the actual statements in the transcript. This raises the perpetual problem of a false characterization repeated becomes part of the “myth of the case,” which may be utterly false but is nearly impossible to shake off.
On the one hand, this is just the start of the effort by Judge Scheindlin to vindicate her conduct that was smeared by the Circuit panel’s “cheap shot.” It could get quite screwy with all the various pieces at play here, including the new Mayor’s antipathy toward the dreaded Stop & Frisk program which could moot the legal issue (a good thing), but leave the smell of cheap taint lingering over Judge Scheindlin without any opportunity for redress.
On the other hand, the content of these papers makes it increasingly difficult to credit the idea that there was no improper (malicious?) purpose below the surface of this ruling, The idea that the panel’s gratuitous spanking of Judge Scheindlin was a manifestation of its fury about perceived abuse of Local Rule 13 just doesn’t wash, particularly if the Daniels statements in context — rather than as characterized in a media report — don’t come close to anything giving rise to an abusive use of the related case rule.
And this gives rise to another dilemma. No one who has to come before the Second Circuit wants to make personal enemies with the three judges on this panel. The resolution of this issue can be argued with the kindly “you erred” argument, but it won’t suffice to conceal that what happened here was outrageous and wrong. Everyone in the courtroom can smile and be polite, but the elephant will still be in the Second Circuit.
That makes this application one where lines get drawn. Either one can pretend nothing terribly wrong happened here, and it was all just a silly mistake, or one can deal with it as it came, from a bizarre, foundationless, cheap, precipitous, impetuous and gratuitous (I could go on, but I think that’s sufficient to make the point) ruling that wrongly and personally smeared a judge who wasn’t given even the modest courtesy of a head’s up.
Since the cheap shot was fired by the panel judges, it seems clear to me that integrity demands honesty about what happened here. There will be no singing Kumbaya. I’m with Judge Scheindlin all the way.
Update: Here is the transcript of the Daniels’ conference, December 21, 2007 (yes, five long years ago during which time no one ever suggested impropriety of any sort), which gave rise to the contention of an abuse of the related case rule and afoul running. Sorry, kids, but to the extent it was suggested that there was any solicitation of the case, it’s not there. Don’t believe me? Read it for yourself.