Bench Memos

New Second Circuit Opinions on Scheindlin Removal

The Second Circuit panel that two weeks ago issued a brief order removing federal district judge Shira Scheindlin from two stop-and-frisk cases issued two more opinions on the matter yesterday. One opinion more fully explains the panel’s removal decision. The other opinion denies Scheindlin’s extraordinary motion that asked the panel to reconsider its removal decision.

As this New York Times article puts it, the new removal opinion seems to “soften the tone of the original ruling.” Whereas the original order had bluntly stated that Scheindlin “ran afoul of the Code of Conduct for United States Judges,” the new opinion “emphasize[s] at the outset that we make no findings of misconduct, actual bias, or actual partiality on the part of Judge Scheindlin” (p. 6), and it “clarif[ies] that we did not intend to imply in our previous order that Judge Scheindlin engaged in misconduct cognizable either under the Code of Conduct or [other federal law].” These propositions, while very different in tone, are compatible, since, as the panel explains, her conduct “might cause a reasonable observer to question her impartiality” and thus calls for her disqualification under 28 U.S.C. § 455(a).

The panel elaborates the ample basis for its removal order on pages 7 to 12 of its opinion.

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