I noted the other day that the 2nd Circuit Court of Appeals had put a stay on an injunction ordered by District Court Judge Shira Scheindlin reining in the NYPD’s Stop and Frisk program. It was a very odd ruling, removing Scheindlin from handling the case even though neither side had requested such action. That just doesn’t happen. Now Judge Scheindlin has responded to the allegations made against her by the appeals court and makes a compelling case.
But the court of appeals then went further, entirely on its own initiative, and ordered Judge Scheindlin’s removal from the case. The city had not even requested that remedy. This is unheard of. The court criticized Judge Scheindlin for violating norms of impartiality in two ways—by deciding to take on the case as a “related case” at its outset, and by making some statements to the media while the case was ongoing. Because the city had not even raised this issue, the court ruled without affording the parties themselves an opportunity to argue whether such an extraordinary remedy is called for.
Judge Scheindlin issued a brief, dignified statement in her own defense. She explained that she took the case as a related case because plaintiffs alleged that the city had violated an order that she herself had issued in a prior case challenging the city’s stop-and-frisk practices. That is an entirely reasonable basis for identifying a case as related. The “related case” rule permits district court judges to take cases that are related to cases they have previously decided, in order to encourage efficient resolution of disputes. Judge Scheindlin was well within her authority in taking the case.
Apparently lacking irony or shame, the court of appeals panel hearing the motion in Floyd departed from the usual practice of allowing the full appeal to be assigned to a random panel and instead ordered that it would hear the full appeal itself. Nor did it offer any explanation for why it was departing from the usual course of business. Evidently when it comes to related cases, what’s sauce for the district court is not sauce for the court of appeals.
The fact that the appeals court took an action that neither the plaintiffs or defendants wanted and gave them no opportunity to argue the case, or for Scheindlin to defend herself or explain her actions, is really quite outrageous. As for the allegation that she had spoken to the media, Scheindlin said this:
Regarding the judge’s allegedly problematic statements to the media, the judge is her own best defender. Here’s what she said in her statement after the court of appeals rebuked her:
All of the interviews identified by the Second Circuit were conducted under the express condition that I would not comment on the Floyd case. And I did not. Some of the reporters used quotes from written opinions in Floyd that gave the appearance that I had commented on the case. However, a careful reading of each interview will reveal that no such comments were made.
The court of appeals panel didn’t feel the need to do “a careful reading.” They didn’t even feel the need to hear from the parties themselves before deciding an issue that neither party had raised or briefed.
Unfortunately, Scheindlin has no recourse here unless the plaintiffs appeal the order that she be recused (and I’m not even sure they can do that). This whole thing stinks to high heaven.