Circuit’s Removal Order: Bad for Scheindlin, Worse for Justice

The Second Circuit U.S. Court of Appeals’ recent order removed Southern District Judge Shira A. Scheindlin from the stop-and-frisk cases she had presided over for 14 years. Aside from tarring her reputation, the order sent a chilling message to any judge who might entertain the thought of issuing an order in a class action designed to remedy a constitutional violation in the way the government functions.

No matter what veneer is put upon it, the removal of a judge is a drastic remedy that turns on a question of whether the judge has compromised the ethical obligation to maintain the appearance of impartiality. The sacking of a judge inevitably carries with it a connotation that the judge’s handling of a case was so egregious that he or she can not be trusted to continue to preside over it.

Was it really necessary for the panel to sideline Scheindlin at the very outset of an appeal before the panel, in its own words, had examined “the merits of this litigation”? There are a number of signs suggesting that it was not.

Simultaneously with its Oct. 31 removal order, the court issued a stay which put on hold Scheindlin’s ruling finding the police department’s stop-and-frisk tactics unconstitutional until the appeal was decided.

Further, the panel’s initial ruling was so rushed that it contained the startling conclusion that Scheindlin “ran afoul” of the U.S. Judicial Code of Conduct. Barely two weeks later the panel had to rescind that language with a “superseding” order that in four instances within 16 pages stated that it was not doing what it had, in fact, done: found that Scheindlin’s conduct had violated the Code’s requirement that judges maintain the appearance of impartiality.

Moreover, the court reached out on its own motion, without a request from the city, to remove Scheindlin, and, in doing so, cited her handling of a court rule that city lawyers had let pass without taking exception to it.

The panel’s unexpected removal order was even more sensitive because it invoked a sparingly used power to remove a judge who had issued a controversial ruling which gave support to an issue Bill de Blasio, the mayor-elect, had made a centerpiece of his campaign.

The ruling also incurred the wrath of Mayor Michael Bloomberg who unleashed a broadside against Scheindlin saying that she had “impugned” the integrity of the police force and had engaged in “brazen activism.”

Standard Handling of Class Action against the Government

Scheindlin’s handling of the lead stop-and-frisk case, Floyd v. City of New York, 08 cv 1034, had been typical of the way any number of judges have handled cases alleging constitutional violations that impact on wide swaths of people, who often are poor and lack political clout. Federal judges throughout the county have handled cases which have tackled constitutional violations in the operations of schools, mental institutions, jails and the conduct of elections, to name a few.

On Aug. 13, after conducting a nine-week trial, Scheindlin found the city’s stop-and-frisk practices in violation of the constitutional protections against unreasonable searches and racial discrimination. To remedy the violations, Scheindlin had ordered the appointment of a monitor to oversee the department’s revision of its practices along with other remedial measures.

Scheindlin first presided over a stop-and-frisk case, which was randomly assigned to her in 1999. That case, Daniels v. City of New York, 99 cv 1695, a citywide class action on behalf of minority males claiming they were targeted for unconstitutional stops, was settled in 2004. Under the settlement, which was, by its terms, to expire at the end of 2007, the city was required to issue rules insuring that stops were carried out in a constitutional manner. The settlement also required police officers to fill out an incident report each time they stopped someone for questioning.

In the Floyd case, which was filed at about the time the Daniels case was to sunset, the plaintiffs, also a class of citywide minority males, were seeking to demonstrate that the police department was failing to comply with the protocols prescribed by the Daniels stipulation. The claims of non-compliance asserted in Floyd were based upon data the Daniels stipulation required the police to collect. The Daniels settlement not only mandated that officers complete incident reports every time a stop took place, but also required the police department to periodically compile the information in them and provide the results to the Daniels plaintiffs. Over the eight years between 2004 and 2012, the department compiled data relating to 4.4 million stops of persons in New York City.

Stain of “Run Afoul” Can Not Be Dodged

The circuit’s hasty, and concededly sloppy, Oct. 31 order removing Scheindlin inevitably cast a serious shadow on her professional standing no matter what spin the three-judge panel— Jose A. Cabranes, John M. Walker Jr. and Barrington D. Parker—subsequently sought to cast upon it in its “superseding’ order issued two weeks later. In its Nov. 13 order, the panel hewed to its original determination to remove Scheindlin but instead did so using softer language than its original assessment that her conduct “ran afoul” of the Code. The second time around the panel found some nice words for Scheindlin, describing her as a “long standing and distinguished jurist.”

The panel’s work, however, must be judged by what it did, not what it wrote. The removal stood, and that means that whatever Scheindlin had done, it was bad enough to require her removal from the case. That is a message that had to reverberate with judges throughout the country as something that could happen to them if they incurred the wrath of an appeals court.

The principal reason requiring Scheindlin’s removal, the panel wrote, was that she had appeared to show bias when she suggested to the plaintiffs that they use a court rule to have a case (subsequently filed as Floyd) assigned directly to her. The rule, known as the related-case rule, is designed to conserve judicial resources by having one judge preside over cases raising the same issues and involving the same, or related, parties. Normally, the assignment of cases is done randomly among all the judges assigned to a courthouse to prevent lawyers from “shopping” for a judge viewed as being favorable to their case. The panel further cited Scheindlin’s statements made to the press near the conclusion of the bench trial in May as having “exacerbated” the “appearance of partiality.”

Floyd and Daniels Closely Linked

As described in the panel’s Oct. 31 and Nov. 13 orders, Scheindlin suggested to the plaintiffs’ lawyers, at a court conference held 10 days before the Daniels stipulation was set to sunset on Dec. 31, 2007, that they file a new lawsuit under the related-case rule. The panel cast the suggestion in a sinister light, noting that Scheindlin had told the plaintiffs’ lawyers that their claim “could be viable” and they “would likely” be “entitle [d] to documents they sought.”

That portrayal glosses over several significant facts: 1) at the Daniels conference the plaintiffs were asking Scheindlin to extend the sunset date so they could bring a motion for contempt because the police department’s stops under the new protocols had not stemmed the departments’ unconstitutional behavior; 2) Scheindlin had rejected the plaintiffs’ request, noting they were trying to put “a square peg in a round hole;” 3) the Daniels case had been randomly assigned to Scheindlin; and 4) the same parties, lawyers and subject matter were involved in both cases; and 5) both the Daniels and Floyd cases were intertwined because the Floyd plaintiffs sought to enforce the Daniels rules with Daniels data.

It’s tough to argue on those facts that the purpose of the rule—judicial economy—was not served by Scheindlin’s handling of Floyd. But could her off-the-cuff assessment of the applicability of the related-case rule during the conference have been wrong? Of course. The city’s position that the suggestion was legally off base calls for an assessment of technical issues concerning both the scope of the rule and when a case is terminated.

But, why didn’t the city object when Floyd was first filed rather than waiting for more than five years until Scheindlin had decided its stop-and-frisk tactics were unconstitutional? Even if Scheindlin had misapplied the related-case rule, removal was out of proportion to the mistaken construction of an internal court rule.


Interviews Provocative, Not Biased

The panel cited three press interviews that Scheindlin gave last spring while the trial in Floyd was in progress as revealing her bias. The interviews were provocative and impolitic but did not express views on the legal and factual issues before her and in fact proclaimed a specific intent not to.

She certainly described herself as an activist judge. In an interview with the New Yorker, she said she welcomed the opportunity  “to do what you think is right, what you believe in. You’re pushing the margins of the envelope, being willing to be creative.”

Scheindlin has been on the bench since 1994, and she was not saying anything that lawyers who practice in the Manhattan-based federal court and her peers on the bench did not already know. “Pushing the margins of the envelope” does not mean that she is willing to twist facts or ignore established precedent to achieve a result.

Judicial philosophy should not be a disqualifier. If it was, U.S. Supreme Court Justice Antonin Scalia, whose conservative legal thinking is well known, would never have been permitted to sit on Gore v. Bush, the case that decided the 2000 election. Disqualifying Scheindlin for that reason would mean that they city could credibly ask for her disqualification on any case challenging the application of its policies.

Scheindlin also likely angered many federal judges on both the trial and appeals levels who early in their careers were prosecutors at the U.S. Attorneys Office in Manhattan when she told the New Yorker,  “Too many judges, especially because so many of our judges come out of that [the Southern District U.S. Attorney’s] office become government judges.”

The panel took that statement, and a similar one to the Associated Press, as reflecting bias against the government. But that is not what she said. Unlike some of her peers who might be deferential to the government, she described herself as “independent” and “not afraid to rule against the government” i.e. even-handed in her treatment of all litigants.

Scheindlin Carrying on a Heroic Tradition

In her handling of the stop-and frisk cases Scheindlin has not been deterred by the enormity of the task before her. She has spent 14 of her 19 years on the federal bench handling cases challenging the police department’s interactions with minority males as constitutionally defective. If she ends up remaining on the case (a motion asking that all 13 active judges serving in the Second Circuit review the removal order has temporarily been put on hold), she would likely spend a good number more overseeing the city’s remedial efforts.

Her work in the stop-and-frisk cases carries on a tradition established by some of the nation’s finest jurists. The career of Alabama District Court Judge Frank M. Johnson Jr., who died in 1999, is illustrative of the heroics performed by many federal district judges on hot-button cases. Shortly after being appointed to the bench in 1955, he sat on a three-judge panel that ordered the Montgomery bus system to desegregate. He went on to issue dozens of decisions desegregating Alabama’s schools, dismantling vestiges of Jim Crow laws and reforming its prisons and mental institutions. He crossed swords with Alabama’s segregationist governor George Wallace, and was given 24-hour protection for 15 years after a cross was burned on his lawn in 1956. As courageous as Johnson was, what would he have been able to accomplish if a hostile 5th Circuit had been looking over his shoulder armed with the power to remove him from controversial cases with the stroke of a pen?




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3 responses to “Circuit’s Removal Order: Bad for Scheindlin, Worse for Justice

  1. Harry Reynolds

    Looking at the wreckage through my rear view mirror, the odds are that the 2d Circuit judges now regret the making of their harmful criticism of Justice Scheindlin in the absence of any necessity to do so, and as for Justice Scheindlin, having been struck down when acting in the interest of justice, she has been given the high reward of a place in our history, a result that she did not expect and a position that the 2d Circuit judges did not intend.

  2. Phil Segal

    Congratulations on this thoughtful piece and exposing the dishonesty of the Second Circuit removal of Judge Scheindlin. Good job.


  3. Sad for justice. And sad for Judge Scheindlin. Know how she feels, almost. She’ll get over it, but everyday she’ll ask herself it they were talking about her.