As a blawger, I have the latitude to write pretty much any thought or question on a screen, and the worst that will come of it is the occasional gun pointed at my head or a judge or prosecutor’s pointed reminder that they read what I wrote and will savor the opportunity to make my life miserable.  Nothing to be concerned about.

But when a senior judge publicly opines, it reflects a level of honesty and boldness that’s, well, remarkably admirable.  Nebraska federal judge Richard G. Kopf replies to my question of why the Second Circuit panel put the screws to Judge Shira Scheindlin.  Regardless of whether his views confirm your own, the fact that he offers them is worthy of our enormous respect.

Some saw my challenge, after Judge Kopf had already called the ruling a “cheap shot” to be impolite. I asked too much of him. Even Big Tent Democrat from TalkLeft thought I was unduly harsh. If I put Judge Kopf into an uncomfortable corner, then I regret my challenge, as it may have added to the awkwardness of being an Article III judge who is willing to speak openly.  We are all better having this dialogue to the extent Judge Kopf is comfortable with it than we would be if he did not.

Yet, Judge Kopf did respond rather than hold me in contempt, for which I am grateful.

*The answer to SHG’s “why” question is this:  The appellate judges were furious and thought they needed to send an unmistakable message. But it is not the message skeptics think it was. The removal of Judge Scheindlin was driven by a sort of rage over the perceived manipulation of the local rule on “relatedness.” It was intended as a deterrent to any trial judge, including especially Scheindlin, who games the system by screwing with the Holy Grail of judicial neutrality–the random assignment of cases. I suspect that indignation had been bubbling under the surface at the Second Circuit for a very long time and it erupted without warning, much like a volcano, under the increased pressure of the “stop and frisk” cases that were likely to become moot. The intemperate and easily misunderstood order of removal was not, however, borne out of a Machiavellian scheme to take sides in the litigation before the Second Circuit or to silence Judge Scheindlin (or any other federal trial judge) on the merits of civil rights cases “properly” before her but yet to come.

*In sum, genuine anger over Judge Scheindlin’s use and perceived abuse of the “relatedness” rule rather than some hidden calculation worthy of the Prince is the solution that best fits Occam’s razor.

In processing this answer, more questions are raised.

Why this case?  The panel raised the issue on their own, with no motion before them nor raised in the court below. There was no evidentiary hearing. They had nothing. It could be a matter of judicial modesty be damned, but why use this case, one that was closely watched by the nation, involved millions of New Yorkers and was an inflammatory issue in a pending political campaign, where the issue was neither factually developed nor briefed, nor even properly before the panel. Not only was the ruling in this case itself inflammatory, but it hardly behooved the panel to lash out in a case where the issue wasn’t raised or briefed.  There couldn’t be a worse case in which to make a point, and yet they did, taking a cheap shot at a sitting judge in the process.

Were they that furious about perceived abuse of the related case rule?  Were they not so furious in any other case where the issue was properly raised and briefed?  Why this case?

Why Judge Shira Scheindlin?  There are no voices, Judge Kopf’s included, that haven’t viewed the panel’s smack a cheap shot.  Judge Scheindlin is a controversial judge for the reasons already developed, and doubly controversial in the Ligon and Floyd cases due to the perception (if not the reality) that she would be the judge most amenable to finding against the City in the Southern District of New York.

If the message was not intended to be a strike against judicial independence, a smack to teach a judge which side to favor, then it was tone deaf. I credit the panel with being well aware of the impact of its ruling, both in this case and toward Judge Scheindlin.  Was its fury at the invocation of Local Rule 13 so great that the panel didn’t care about unintended consequences?

But that still leaves the question of whether Judge Scheindlin’s assertion that a new case adequately raising extant issues was an “abuse” of the related case rule. Perhaps others will see a wrong here, where I see a judge stating a regularly invoked rule of her district. I see no abuse. Judge Scheindlin correctly stated the rule that would bring a new case before her, and whether it’s viewed as an invitation or admonition (for if the plaintiff’s weren’t thrilled at the prospect of another case coming before Judge Scheindlin, this could have been a warning, a detail that nobody seems to consider), it is the rule in the district.

So what makes Judge Scheindlin’s statement an abuse? The rule is invoked regularly, often to the disadvantage of defendants while government enjoys its benefits. Why is there no fury then? Why seize the opportunity when Judge Scheindlin’s initials are next to the docket number to suddenly let the dam burst, the fury come out, and smother Judge Shira Scheindlin?

Is it Occam’s Razor?  I’m a huge fan of Occam’s Razor, grounded in the principle of lex parsimoniae. It provides that the simplest explanation that accounts for all known facts is usually correct.  Yet, my appreciation of parsimony aside, it’s unclear that it readily applies here.

Judge Kopf notes, via a comment offered by my VC buddy, Orin Kerr, an obscure law review article by LSU teaching fellow Katherine A. Macfarlane that appeared in the Michigan Journal of Race & Law last September:

It’s about the SDNY’s related cases rule and its role in stop-and-frisk litigation. Curiously, three of the non-legal sources I cited to–an article by Jeffrey Toobin in the New Yorker, an article by Joe Goldstein in the New York Times, and an article by Mark Hamblett in the New York Law Journal–were also cited by the Second Circuit in its recent order kicking Judge Scheindlin off the stop-and-frisk cases. The “appearance of impartiality” idea also pops up in my article. This is either an incredible coincidence, or else, a clerk read my SSRN post.

Judge Kopf states that he doesn’t believe in coincidences, which is fine. But belief isn’t the same as a “known fact” for the purpose of Occam’s Razor.  The Second Circuit panel didn’t cite to the law review article, and the fact that they shared the same news articles isn’t exactly remarkable under the circumstances.

More to the point, complaints of whether non-random case assignment conflicts with the appearance of impartiality (oh hell, with actual impartiality), have been screamed long and loud for decades. Ms. Macfarlane’s article may be very persuasive, but it’s not exactly a novel concept. Was this law review article, which is only speculatively related to the panel’s decision, so convincing that it caused such fury among the three judges?  Enough so to do what they did in this case, to this judge, under all of these circumstances?  And in the absence of a known fact that this is the case, does the principle of Occam’s Razor still support the conclusion?

Even so, the principle is not absolute, but rather a tendency.  Unfortunately, neither Judge Kopf nor I (nor you) can say with certainty what went through the minds of Judges Cabranes, Parker and Walker in this ruling.

What truly motivated this panel to do what they did may remain a mystery, but it will always be a mystery that (as Judge Scheindlin once wrote in an opinion in a case I had before her) emits an unpleasant odor.  Of course, she is far kinder with words than I am. I think it stinks.