Thunder and lightning, but the judges who ride the Second Circuit of the United States Court of Appeals made short work of Judge Shira Scheindlin’s plea that she be put back on the stop-question-and-frisk case. Late Wednesday, the panel of three judges who threw her off the case denied her request in a devastating order.
The judges suggested that Scheindlin had presented a question of whether “a district judge may participate as a party, as an intervenor or as an amicus curiae in an appeal of her decisions.” When one stops to think about it, the fact that Scheindlin was trying to do so was in and of itself a failure to maintain the appearance of impartiality.
“We know of no precedent suggesting that a district judge has standing before an appellate court to protest reassignment of a case. While a district judge may believe that he or she has expended a great deal of effort and energy on a case, only to see it reassigned, reassignment is not a legal injury to the district judge.”
“Rather,” the court said, “reassignment allows the courts to ensure that cases are decided by judges without even an appearance of partiality. A district judge has no legal interest in a case or its outcome, and, consequently, suffers no legal injury by reassignment.”
It’s the question of the appearance of impartiality that lies at the heart of the judges’ concern with Scheindlin, the panel stressed yesterday. Its members — Judges John Walker, Barrington Parker and Jose Cabranes — span the political spectrum but have one thing in common: Each is enormously respected on the federal bench.
Scheindlin’s claim had to have been one of the most bizarre moves ever from by a federal judge. News dispatches said her lawyer, Burt Neuborne, a professor at NYU who is himself well-known in the federal bar, was reported to be of the view that Scheindlin’s Fifth Amendment rights had been violated when the appeals court threw her off the case,
The Fifth Amendment says, among other things, that no person in America may be “deprived of life, liberty, or property, without due process of law.” The idea that a US district judge has a Fifth Amendment right to preside over a civil case struck me as novel, to say the least. So I called him last week.
Neuborne said it was Scheindlin’s liberty that the Second Circuit trifled with absent — in Neuborne’s view — due process. Even though it was for the absence of due process in her own court that the Second Circuit removed her.
Meanwhile, The New York Times endorsed Scheindlin’s appeal, even though it was the Times itself that first exposed what it called “the possibility of judge shopping” via Schendlin’s abuse of the related-case rule and her invitation to counsel to file the stop-question-and-frisk case in the first place. In effect, the Times took the position that the very scandal it reported is not worth paying attention to.
The appeals court clearly had a different view.
It did not rule Wednesday on the underlying merits of the city’s appeal of Scheindlin’s ruling, which found that the city’s use of the stop-question-and-frisk tactic violated the 4th and 14th Amendments to the Constitution. But the Bloomberg administration has — after a nudge from The Post — filed a motion that the court cut through all the pettifogging and vacate Scheindlin’s order against the NYPD altogether.
The latest ruling makes it ever more clear that an order vacating Scheindlin’s ruling outright would be the best thing for everyone, most of all the city of New York and its next mayor, Bill de Blasio, who’d then be free to run the NYPD however he and his police commissioner see fit.
Besides, if Scheindlin failed to maintain the appearance of impartiality, as the court stressed again today, what would be the basis for letting her ruling stand?