William McGurn

William McGurn

Opinion

Sin of the 2nd circuit: Judges pointed out the obvious

How Shira Scheindlin must wish she’d been simply overruled.

Because in staying her decision on stop-and-frisk, and now shooting down her claim to a constitutional right to preside over this case, the US Court of Appeals for the Second Circuit has done more than correct her legal argument. In essence, the three-judge panel is saying this: We’re taking this case away from Judge Scheindlin because it’s reasonable for people to question her fairness.

That’s humiliating for Scheindlin. But it’s also embarrassing for all those complicit in her stop-and-frisk circus: the newspaper that egged her on, the civil-rights groups that took her advice to go judge-shopping and the progressive establishment that looked the other way because they wanted the ruling everyone knew Judge Scheindlin would deliver before the first witness was sworn in: a finding that the New York Police Department was guilty of racial profiling.

Furious that they’ve been called out, they’re now busy trying to tear down the circuit court. You see this at The New York Times, which accuses the court of having “unjustly damaged Judge Scheindlin’s reputation.” You see it in the lawyer better known in the green room than the courtroom, who in The New Yorker accuses the court of “arrogance, pomposity, and petulance.” And you see it in the statement from the Center for Constitutional Rights, which denounced the Second Circuit’s action removing Scheindlin as “a perfect storm of procedural irregularity.”

What all these people and institutions recognize — but the general public hasn’t yet grasped — is how devastating the Second Circuit’s rulings are to the project to tar America’s most successful police force with having violated the constitutional rights of the city’s black and Latino citizens.

Up to now, the question about stop-and-frisk has been whether the city’s appeal of Scheindlin’s decision would continue if Bill de Blasio were elected mayor. That’s all changed. Last Saturday, city lawyers finally followed up on the Second Circuit’s ruling by asking it to vacate the whole decision on the grounds that it was poisoned fruit from the start.

The motion makes for illuminating reading. Among the city’s complaints is that letting Scheindlin’s ruling stand would lend “credence to the notion that the NYPD unfairly targets minorities for stops and frisks, undermining its ability to carry out its mission effectively.” In other words, it libels the good name of Ray Kelly and his cops and makes it harder for them to do their jobs.

Here’s hoping the court grants the city its motion. You don’t have to be an attorney to recognize the self-indulgence at the heart of Scheindlin’s ruling or the high-handed way she conducted her trial. Not to mention the shabby acquiescence by so many who know better.

As for the bizarre assertion that Scheindlin has some Fifth Amendment right to be put back on this case, the circuit court handily dispatched that and related claims on Wednesday. And what does it tell you about the stink of this whole case that one of the groups joining the judge in her bid to be re-instated happens to be a party to the case — the Center for Constitutional Rights?

Then again, as with most progressive causes the legalities are really of secondary importance. The most important thing is the desired outcome, which is to be achieved by hook or crook — in this case, mostly by crook. With the legal options for getting Judge Scheidlin back on the case all but eliminated, we’re likely to see the anti-stop-and-frisk campaign now try to tear down the Second Circuit the same way it went after the police.

Good luck with that. Jose Cabranes was a Jimmy Carter judge raised to the appeals court by Bill Clinton. Barrington Parker was nominated to the bench by Bill Clinton and raised to the appeals court by George W. Bush in a good will gesture to Senate Democrats. And John Walker is a Reagan judge put on the appeals court by George H. W. Bush. For those for whom these things matter, this works out to one Latino, one black, and one white.

In the end, of course, all this is just noise intended to distract us from the bedrock promise of American justice that is the basis for the Second Circuit’s actions: the right to a fair hearing in a courtroom whose honesty is beyond question.

Anyone who watched Judge Scheindlin handle this case quickly grasped how far her courtroom was from what Edmund Burke once described as “the cold neutrality of an impartial judge.”

Some cheered her on because they were more interested in the outcome than in cold neutrality. Which is why they now find themselves so perturbed by a Second Circuit that has had the nerve to point out the obvious.