A Hole Too Deep

The saga (and it’s already reached saga status, even though it’s barely been around for two weeks at this point) of the 2d Circuit panel’s bizarre war with Judge Shira Scheindlin in the stop & frisk cases, Ligon and Floyd, continues to spiral out of control, as the judge and both plaintiffs have sought to undo the ruling.

But it’s not just the parties aggrieved who have been typing away.  Michael Cardozo, Corporation Counsel of the City of New York, who serves at the pleasure of Mayor Michael Bloomberg, lame ducks all, has a computer of his own and he’s not afraid to use it.

Smelling blood, Cardozo now seeks to do what was never done before, scream for Judge Scheindlin’s judicial head and rid the city of this blight before the new mayor finds the door.  Lawprof Anil Kalhan does a very thorough job of shredding the City’s new-found manliness at Dorf on Law.

Late last night, outgoing Corporation Counsel Michael A. Cardozo filed that motion under his own signature. Cardozo’s motion is a truly brazen document, aggressively bringing the Bloomberg administration’s ongoing public campaign to malign Judge Scheindlin into the courtroom itself. The motion takes the thinly supported statement by Judges Cabranes, Walker, and Parker in their now widely criticized order that “the appearance of [im]partiality surrounding the litigation has been compromised” and then stretches and recharacterizes that statement as supposedly having gone much further to have “revealed” the actual partiality and impropriety of Judge Scheindlin in all of the litigation’s proceedings—something that Judges Cabranes, Walker, and Parker most certainly did not themselves find or really even suggest.

On that basis, Cardozo’s motion then simply repackages all of the Bloomberg administration’s longstanding substantive grievances as issues that supposedly involve judicial ethics, wildly asserting that all findings and conclusions by the District Court with which the Bloomberg administration disagrees on the merits—including its disagreements about the District Court’s technical application of the Southern District’s related cases rule, which is the kind of local procedural rule whose application appellate courts ordinarily evaluate with great deference—now magically constitute evidence of actual bias, total and overt hostility, bad faith, and judicial misconduct. Without any trace of irony, Cardozo’s motion expressly includes in its lengthy catalog of these supposedly “tainted” aspects of the litigation the District Court’s references to news articles that were not formally part of the record. (Paragraph break inserted to make lawprof writing somewhat readable.)

Ouch. And Kalhan continues with a few jabs and a left hook. Forget that a new mayor is coming in; Cardozo’s got a month and a half left before his ticket gets punched and he’s going to try to ram his way through the panel’s opening before his time expires.  So what if every point he raises is disingenuous. There’s law to be done, and he’s got just the panel to do it.

But as prim and proper lawyers, adhering to our ethical mandate to do nothing to bring the legal system into disrepute, we’re not concerned by the 2d Circuit panel’s ultra vires ruling, its stay of an order requiring the New York City Police Department to respect the Constitution or the circus it unleashed. Oh no. Those are merely the concerns of a couple of individual cases, which only affect a few million people.

As the righteous mandarins of the profession know, our preeminent concern is that the court not be brought into disrepute by this unseemly mud-wrestling.  To that end. Judge Richard Kopf offered a suggestion for the Circuit to worm its way out of this mess:

If the Second Circuit has any sense, an order like the following would be entered today:

Various motions are pending. One has been filed by the district judge. One been filed by the appellees and one has been filed by the appellants. They all seek further and other relief as a result of our prior order staying these cases and requiring that a new district judge be assigned.

After due consideration, we deny all the motions. We also strike from our prior order the finding that the trial judge violated the Code of Conduct. However, that portion of our prior order staying these matters and requiring that a new trial judge be assigned to these cases remains effective. Finally, we refer these cases to the Clerk of Court for reassignment to a new panel. In doing so, we note that the Court en banc has this date denied all requests asserted in the motions filed by the trial judge and the parties for rehearing en banc.

s/Jose Cabranes, Barrington Parker and John Walker

Courts have the amazing ability to issue an order, nunc pro tunc, that makes reality fade and creates a new one more to its liking.  Judges pretend that if they order a bell unrung, then unrung it shall be.  Judge Kopf adds another point, that it was a mistake for Judge Scheindlin to enter the ring, and she should have remained aloof from the mud-wrestling.

The Circuit has acted like an angry and petulant toddler, and it is up to the trial judge to be the adult in the room.

Much as I can understand why Judge Scheindlin wanted to have her say after the panel smeared her, it wasn’t necessary (as there are plenty of others who have the good will to defend her) and jumping into the hole with the panel will only serve to needlessly dirty her robes.  Judge Kopf’s point is a life lesson, and couldn’t be said any better.

While his takedown of Cardozo packs a punch, Kalhan still pulls his punches with the Circuit panel:

Of course, all three are distinguished, long serving, and highly respected judges, and one certainly must presume that they have acted with good faith, sincerity, and impartiality. But as Dean Erwin Chemerinsky wrote in the New York Law Journal last week, “[j]udges are human,” and the nature and circumstances of the panel’s order makes it appear that the panel got “caught up in the … deep emotions” of this highly charged case and “rushed to quickly take sides.”

Sorry, but judges of a Circuit Court of Appeals aren’t excused from all propriety because they got “caught up in the … deep emotions.”  This grasp at straws to avoid the hard, no, inexplicable, question of what the hell were they thinking won’t fly. The 2d Circuit is up to its eyeballs in highly charged cases, and if they are forgiven for losing their heads, then the legal system is reduced to a total joke.

This bell will not be unrung. No order from the panel will turn our frown upside down. It’s not going away, and there will be no means by which this panel can rehabilitate itself.  The only question remaining is how much further down the hole will we get before everyone acknowledges that this mind-bogglingly bizarre ruling has exposed a gaping wound in the 2d Circuit that cannot be healed?

Fortunately, given the many applications before the Circuit, I expect we’re going to find out.

9 thoughts on “A Hole Too Deep

  1. Jake DiMare

    So, there’s a lot of legal mumbo jumbo in there but I think I get it…But I’m left with two questions from the peanut gallery:

    1. Will Bill DeBlasio have the power to end stop and frisk?
    2. If yes, is it your opinion that he will?

    My own assumption, based on what I’ve read in the media, is the answer is yes to both. However, being up here in Boston I have a certain level of separation from the ground truth of NYC politics.

    1. SHG Post author

      As to your first question, yes. The policy of “stop & frisk” (as opposed to the legal concept of stop and frisk) was a political decision of Mayor Bloomberg and Police Commissioner Ray Kelly. He can stop it as soon as he takes office.

      As to your second question, there is no way my opinion can either be valid or matter. Mayor de Blasio will do whatever Mayor de Blasio will do. Politicians occasionally make promises that seem like a great idea while running for office, but not so good when they put on the mayor’s hat.

  2. Turk

    Cardozo violated two rules that I learned as a rookie lawyer:

    1. Don’t overplay your hand;
    2. When the judge takes your side, shut the hell up.

  3. Daniel

    i do not think overplaying their hand is exactly the right characterization. The mistake they made was confusing two things that would have been better off separate. If they really wanted to teach the Judge a lesson they could have found some other case to do it, biding their time, and while die hard supporters might be up in arms most people wouldn’t have cared if they had disciplined her on some obscure case. Then they could have disposed of stop and frisk at their leisure. Instead, they took fuel and poured in on the fire. They created a huge sideshow that had nothing to do with the merits. Now everyone’s ego is involved and there are no winners.

  4. John Barleycorn

    Welcome back….welcome back, welcome back…

    I will not. Even if I was capable of third or fourth folding into re-tooling there just ain’t no fucking way!

    Have a link.

    Welcome Back Mr. Kotter?


    Its like a minute, no desks only a log and haze of a sky.

    Where has all the dry humor gone when those in positions of influence don’t even see it, while going out of their way to stomp it.

    Slow this fucking train down!

  5. Benedict

    Judge Scheindlin did violate the Code of Conduct by granting interviews while the case was pending. Despite her protestations to the contrary, she plainly telegraphed her bias in those interviews, as did at least two other judges who got themselves removed for the same reason in similar past cases (Judge Jackson for anti-Bill Gates interviews in the Microsoft case and Judge Edelstein for similar grandstanding in the IBM case – look it up). The Panel (two Clinton appointees) didn’t have to wait for the City to ask for her to be disciplined in this way, and the City would have been crazy to bring it up in the first instance, since, if the Circuit had denied their request, Scheindlin would have owned the City on remand. I disagree with you, the 3 judges on the Panel were the adults in the room, certainly not the trial judge. The Order should read: “Movant Scheindlin’s application is denied for lack of standing. All other motions will be briefed by November 15, argument shall be held on November 18.” The Circuit should then publish a decision by Christmas, remanding the case to the newly assigned judge (John Koeltl, a very respected judge who will clean up Scheindlin’s mess quite capably)

    1. SHG Post author

      Thank you for the City’s talking points. As they’ve already been ripped to shreds for being factually and logically flawed, there’s no reason to go through it again.

  6. Pingback: Stop & Frisk: Did The Circus Leave Town? | Simple Justice

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