Judge Scheindlin’s Extraordinary Motion on Her Disqualification

by Ed Whelan

Federal district judge Shira Scheindlin, whom a Second Circuit panel recently disqualified from two stop-and-frisk cases, is “a grandiose gasbag,” “a rambling fool,” and “an unabashed attention seeker.” So we’re told by an extraordinary motion filed yesterday by … Judge Scheindlin’s lawyers, who ask the Second Circuit panel (or the en banc Second Circuit) to reconsider the disqualification order.

To be clear: Scheindlin’s lawyers (a supposed “Dream Team” that includes four law professors) don’t embrace those derogatory descriptions of their client. Rather, those descriptions come in a reader’s comment prominently appended to one of the articles that they attach to their motion. That the lawyers failed to use the readily available presentation of the article that doesn’t include the derogatory comments is a testament to the overall poor quality of their motion. In particular:

1. The motion asserts that the Second Circuit’s order was “procedurally deficient” because “Rule 21 of the Federal Rules of Appellate Procedure carefully assures that where a district judge is charged with conduct amounting to judicial misbehavior, the judge will receive notice of the allegations pending before a Circuit court, and an opportunity to seek leave to be heard.” The motion even contends that the Second Circuit’s order “is an affront to the values underlying the Fifth Amendment’s guaranty of procedural due process of law.”

But Rule 21 by its express terms applies only when a “party [is] petitioning for a writ of mandamus or prohibition directed to a [district] court” (which is not the situation in which the panel acted). Even then, it accords broad discretion to the court of appeals to decide whether to invite comment from the district judge:

The court of appeals may invite or order the trial-court judge to address the petition or may invite an amicus curiae to do so. The trial-court judge may request permission to address the petition but may not do so unless invited or ordered to do so by the court of appeals.

The experienced judges on the Second Circuit panel surely knew that they could have invited comment from Judge Scheindlin on the disqualification question. They obviously formed the judgment that such comment would be unnecessary and unhelpful. Some commentators may well disagree with their assessment. But there is no basis for concluding that the panel violated Rule 21 (which doesn’t even apply). Nor does a federal district judge have some sort of constitutional due-process protection against being removed from a case.

2. The motion asserts that the Second Circuit’s order was “inaccurate and substantively unwarranted.” But the motion nowhere acknowledges, much less confronts, ample grounds for the order. As I discussed more fully in my initial post on the order, the articles that the order cites reveal that Scheindlin had a general practice of grabbing control of stop-and-frisk cases, and they readily invite the inference that she aggressively employed the related-case rule in order to keep such cases from going to other judges whom she viewed as too pro-government. Those facts would certainly seem to provide an ample basis for questioning her impartiality in such cases.

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