The judge presiding over one of the most politically charged cases in recent New York City history says her 20 years on the bench have taught her to "appreciate more than ever the words ‘judicial independence.’"
Shira Scheindlin, in a recent interview during the nine-week bench trial over the constitutionality of the New York City Police Department’s anti-crime stop, question and frisk policies, said there are too many judges who don’t want to take chances and deliver controversial rulings.
"They are fearful or they want a promotion or whatever it is, they don’t exercise the independence they should have. State court judges of course face re-election, which is a terrible thing, but federal judges, who are appointed for life, don’t appreciate how much independence they have—many of them are a little cautious, more cautious than they should be."
Few court observers would describe Scheindlin as cautious and the judge spoke freely when she sat down recently with the Law Journal to discuss some of her prior decisions and her views on being a federal judge. The only subject off the table was the ongoing trial, expected to wrap up on May 20 with closing arguments.
The judge, who already has made some rulings critical of the city for stop-and-frisk, has not been reluctant to make controversial decisions in the realm of civil liberties and constitutional law that have drawn the ire of police and prosecutors.
"I do think judges have a duty to protect individual rights because that’s what the Bill of Rights is all about," she said. "It’s the responsibility of the judiciary to protect those rights granted by our Founders. Now, does that make me an activist? No. Some people have said I’m conservative because I go back to what the Founders wrote and what they meant. I see it as abiding by my constitutional duty and our oath."
Among her other matters, Scheindlin (See Profile) has issued a series of groundbreaking opinions on e-discovery in Zubulake v. UBS Warburg, which she regards as her most significant case. (See, for example, NYLJ, May 13, 2003, and July 25, 2003).
She has presided over multi-district litigation on conflicts of interest at investment banks in initial public offerings, and has presided over the trials of mobster John Gotti Jr. and Police Officer Francis Livoti in the use of a deadly chokehold on Anthony Baez.
Scheindlin has held parts of New York’s anti-harassment statute unconstitutional; found police in contempt for continuing to enforce a law against loitering for the purposes of begging for money or cruising for sex that had long been ruled unconstitutional; held the National Football League was violating the antitrust laws by preventing underclassman Maurice Clarett from participating in the league draft (later reversed); and compelled the Metropolitan Transportation Authority to reinstate subway advertising that mocked Mayor Rudolph Giuliani.
"What I’ve learned is do what you think is right, follow the law, do what you think you can do," she said. "Sometimes there is no precedent that constrains you and you can really strike out and write what you think is the right answer."
Scheindlin, 66, has earned a reputation as a hard-working judge and has kept up a full docket since taking senior status last year. She takes an average of 15 new cases a month and has a pending caseload of 132, not including related cases in multidistrict litigation. Her workload is in the upper half of senior judges in the district.
She sets a quick pace in her courtroom, with little tolerance for lawyers who obfuscate or belabor a point. She often asks questions herself when things slow down, although she said, "I don’t think I’ve committed the sin of taking over trials."
"She is a judge who runs a very, very strong courtroom and has a clear idea of how she wants to do it," said one veteran Southern District practitioner.
"I think sometimes people can be critical of her because she can sometimes be sharp to litigants, put people down and be critical. But from my experience, when she comes on the bench, she’s prepared, she has strong views and she has the courage of her convictions," he added. "Her ideas can sometimes be idiosyncratic. She’s not afraid to think independently."
Scheindlin "runs a very orderly courtroom, dignified, and as a jurist she’s not only smart but she’s creative," said Robert Swift of Kohn Swift & Graf in Philadelphia, who has appeared before her. "She asks good questions and is polite to counsel, but, by the same token, she doesn’t let counsel argue silly motions or make silly requests—she’s well in control of her courtroom. She’s certainly been reversed, but that’s also indicative of a judge being certain of what the law should be—not just what it is."
Like other judges, Scheindlin said she expects lawyers who appear before her to be well prepared.
"They need to be familiar with the facts and the law on the spot and not say, ‘Oh sorry, I have to go look that up, or ‘I’m sorry, I have to ask a colleague,’" she said.
Unusual Path to the Law
Scheindlin was born in Washington, D.C., raised in Detroit, and educated at the University of Michigan, Columbia University and Cornell Law School.
She was working at Columbia as a graduate student in Far Eastern studies, but she said the language requirements were so rigorous—years of Chinese and Japanese included—"that I knew I would never finish my dissertation. So I said, ‘What’s next?’
"I really didn’t know much about the law but I knew it offered a broad education that gives you lots of possibilities of what you might do with it afterward," she said.
"I think at that point I thought I was going to be doing divorces and house closings and DWIs," she said. "I thought I’d be a local town lawyer married to a professor on the campus."
After graduating from Cornell in 1975, she spent a year at Stroock & Stroock & Lavan, then clerked for Southern District Judge Charles Brieant and was hired by David Trager, who was then the U.S. attorney in the Eastern District. She rose from general prosecutions to handling political corruption cases before being named deputy chief of the Economic Crimes Unit while working as Trager’s administrative assistant U.S. attorney.
Scheindlin counts Trager, along with Brieant and Eastern District Judge Jack Weinstein, as mentors.
Trager, she said, "was funny, he would speak in the imperative—’you will get a clerkship, you will apply to be a magistrate."
She spent a year as general counsel at the New York City Department of Education and then returned to the Eastern District as a magistrate judge from 1982 to 1986, where she was also appointed as special master by Weinstein in the Agent Orange cases and litigation over asbestos.
Scheindlin returned to private practice in 1986 as a partner with Budd, Larner, Gross, Rosenbaum, Greenberg & Sade and then Herzfeld & Rubin, where she worked as a commercial litigator until she was named a federal judge by President Bill Clinton in 1994, part of a wave of new judges who sometimes refer to themselves as the "Class of ’94."
It is rare for magistrates to be promoted to Article III judgeships, and Scheindlin said her experience as a special master and magistrate —the first woman magistrate judge or district judge in the Eastern District—helped her hit the ground running when she took the bench in Manhattan.
"I just took that bench and I knew what I was doing," she said. "And I got feedback right away like, ‘Boy you look like you’ve been doing this forever’ and I would make a joke, ‘Well, that’s because I have.’"
She added,"I was incredibly fortunate—it is not easy for those who have not had any judicial experience."
Scheindlin said she never had any interest in moving to the U.S. Court of Appeals for the Second Circuit because cases are built at the district court level.
District judges "have a much more exciting job than the Court of Appeals, because we shape the case in the first instance. We shape the issue—the case comes in the door and we are the first judge on the line, with the first crack at giving an answer and shaping a ruling, shaping the whole future of that case, right?
"The Court of Appeals has to use what we’ve done—we have the tough job—all they can do is review it and say ‘You got it right or you got it wrong.’"
Scheindlin said the problem with the appellate court is that "there you’ve got to negotiate and get votes and there’s three of you and you can end up in dissent when you really don’t want to. To me, this is the best of all worlds."
One case where the circuit said Scheindlin "got it wrong" was an opinion she remains proud of—her ruling that the government had abused the material witness statute by detaining Osama Awadallah in the 9/11 investigation and then prosecuting him for perjury. Awadallah had known two of the 9/11 hijackers in California (NYLJ, April 30, 2002).
Scheindlin dismissed the charges, calling it a "perjury trap" and holding the material witness statute was intended to be used only for trial witnesses, not people being interviewed in connection with an investigation.
The Second Circuit reversed and sent it back for trial (NYLJ, Nov. 10, 2003). The first jury hung 11 to 1 for conviction. The second, the judge recalled, "was 12-zip for acquittal."
"What happened in between?" Scheindlin asked. "It was exactly the same evidence, the same lawyers, and it was word for word the same trial record. What happened is that, it was later in the Bush administration and his policies were no longer as popular and people had pulled back…and were now looking at some of the consequences of the event that they didn’t really like."
But the judge also said that the jury in the second trial was subjected to a "much stronger voir dire."
"The second questionnaire worked much harder to probe bias—’did you know anybody even indirectly, who was injured that day?’"
"We know that the first jury was in tears, people were crying, telling about their neighbor who had lost a son, which was not at all the point of the prosecution."
‘Judges Are Human Beings’
Scheindlin’s ruling in the Awadallah case drew criticism that she said found hard to take.
"Judges are human beings and it always hurts to be attacked when you can’t defend yourself—that’s a very painful thing," she said. "Over the years I have read editorials such as the famous ‘Osama’s Best Friend’ after the Awadallah decision, it was hurtful.
"I would have liked to have been able to explain the decision so that the public understood it so I was not wrongly attacked but a judge doesn’t have that ability," she said. "In recent years the bar associations have really stepped up to the plate and tried to defend judges, not on the merits of their decisions but by explaining their job, that the judge is a neutral and does the best they can. To attack them personally when it’s not a matter of dishonesty, just disagreement, is a terrible thing."
With her involvement in the stop-and-frisk litigation Scheindlin has had to cope with sharp criticism from city officials like Police Commissioner Raymond Kelly, who has accused her of being in the thrall of a few civil rights lawyers.
The New York County Lawyers’ Association wrote to the New York Daily News on May 15 to protest an article reporting that an "internal report" by the mayor’s office purporting to show that Scheindlin is biased against law enforcement because she has ruled against the police in nine of 15 written search-and-seizure opinions she has issued since 1994.
In its letter, NYCLA argued that the report was misleading because it did not consider her suppression decisions from the bench. Moreover, NYCLA wrote, "Judges are not supposed to grade on the curve. They are supposed to decide cases on their merits," and the report didn’t consider the merits of Scheindlin’s rulings.
"I think it’s inappropriate to label any judge as liberal or conservative," Scheindlin said in the interview. "I like to think of myself as a fair-minded neutral who calls the case outcomes the way that the law and justice require."
Scheindlin said she thinks Americans’ attitude toward civil liberties has changed since the Sept. 11, 2001, terrorist attacks.
"I think it’s better—I think the worst time was around 9/11. People just didn’t want to hear about the rights of anybody when they felt their security was threatened—so I think, actually its been slowly better for the last decade as 9/11 has receded," she said. "One worries again, though, with the Boston Marathon bombers and whether public opinion shifts back, but I don’t think anybody was particularly outraged [the surviving suspect] wasn’t read Miranda rights.
"It’s events like this that test people’s commitments to civil liberties…I think the atmosphere has been much better because more of the population has been critical of what I might call the Bush-era policies—the torture memo, the Guantanamo issue, the military courts, the detention without charges."
She said she thinks that President Barack Obama would like to close the detention center at Guantanamo but cannot get Congress to go along.
"It’s deeply troubling to hold people in perpetuity without charging them," Scheindlin said. "We like to think we don’t do that."
Scheindlin said that politics influences the selection of federal judges, but that is mainly on the appellate court level.
"Let’s be realistic, these are political appointments and the makeup of the circuit judges in this circuit is slowly changing now that President Obama has been here five years," she said.
But she said that the Southern District had been "extraordinarily lucky" in avoiding political polarization.
"I’m saying that it’s not partisan, she said. "All through the Bush years, all through the Obama years we have had really high quality people. We are so lucky here we don’t have political hacks. We have well-qualified judges virtually across the board."
Scheindlin said that she was disappointed in the U.S. Supreme Court’s ruling last month on the Alien Tort Claims Act, Kiobel v. Royal Dutch Petroleum, 569 U.S. — (2013), determining that there was no extraterritorial application of the law.
In 2009, Scheindlin had recognized aiding and abetting liability for corporations on human rights violations in South Africa, the case along with Awadallah that has given her the greatest pride (NYLJ, April 9, 2009). But her ruling was put on hold while the Supreme Court considered the issue.
Scheindlin said Justice Samuel Alito "reached out" and skirted the aiding and abetting question just to strike down the law on extraterritoriality grounds, and "that was sad."
Scheindlin observed that new technologies had changed the law since she joined the bench, as evidenced by her own e-discovery rulings in Zubulake and other cases.
"This is what lawyers really talk about—social media, GPS, cell sites, data collection, technology-assisted review," she said. "The biggest change in the law is that all these issues that have arisen out of the new world we live in.
"Now, the civil side is very advanced, the criminal side is just beginning to catch up, but all data is electronic data, all discovery is e-discovery," she said.
And, like many judges, she worries about the impact of social media on juries.
In the case of arms trafficker Viktor Bout, she made the jury sign a "pledge" not to go on Facebook, Twitter, LinkedIn or other outlets and promise they would not communicate that way, and if they did, "they understood they would be subjected to prosecution which was supposed to be an in terrorem effect," she said.
They signed, but one juror in the whole selection process said, "’I can’t sign that’ and I said ‘ Well, thank you for telling me, you’re off," Scheindlin said. "It really is threatening to the jury system—the ease of obtaining evidence outside the courtroom. This has happened again and again."
Scheindlin has been married for almost 30 years to Stanley Friedman, the associate dean of education at SUNY Downstate Medical Center. She has two grown children.
She admits to having virtually no outside interests.
"I love to work," she said. "The only other way I know how to enjoy myself is exercise. Otherwise, I’m a great reader. I love audio books."
She said she’s at the courthouse most days from 10 a.m to 8 p.m., "really living here." She also works all weekend and requires her clerks to work one weekend day.
"This is sort of my home away from home," she said.
@|Mark Hamblett can be contacted at email@example.com.