Popular confidence in the courts requires the conviction that judges are disinterested, open to the facts, attentive to the law, reasonable and careful. Judiciousness is the name we give to those virtues. On Oct. 31, a panel of the U.S. Court of Appeals for the Second Circuit granted a motion to stay the remedial order in a recently concluded stop-and-frisk case, Floyd v. City of New York. It also ordered, on its own motion and without notice to the parties, that the trial court judge, Shira Scheindlin, be removed, concluding that her statements—in published interviews and on the record in court proceedings—compromised the appearance of impartiality of the court in violation of the Code of Conduct of U.S. Judges.
The result was a predictable maelstrom. The editorial pages and pundits erupted. The city and the police demanded the liability judgment be vacated. The judge, outraged at the attack on her conduct, enlisted aid from a raft of prominent law professors. And the plaintiffs demanded immediate en banc review. A raft of intervenors sought to join, including police unions, former mayor Rudolph Giuliani and Michael Mukasey, a former U.S. attorney general and district judge.
On Nov. 14, the Second Circuit panel issued a “superseding order” to replace its first, hasty decree. The judges honed the rationale for their removal order, but they described Scheindlin as “a long serving and distinguished judge” and said they “now clarify 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 under the Judicial Conduct and Disability Act.”
But the superseding order lacks candor, because it was correction, not clarification, in which the court was now engaged. The panel had said in its first order “we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 (‘A judge should avoid impropriety and the appearance of impropriety in all activities.’); see also Canon 3(C)(1) (‘A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned….’), and that the appearance of partiality [sic] surrounding this litigation was compromised by the District Judge’s improper application of the Court’s ‘related case rule…and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.’”
Judicial confession of error—candidly stated—clears the air, but correction painting itself as clarification falls short. The panel in its corrective order would have done well to acknowledge that it had fallen short of Canon 3, the commentary to which notes, “The duty to hear all proceedings fairly and with patience.” The panel’s dramatic order had a shelf life of only two weeks before the judges felt compelled to replace it with a “superseding” and “clarifying” order. Their “nostra sponte” initial order was an impulsive and injudicious intervention in an explosive issue on the eve of an election in which the contested policy was a major issue.
But Scheindlin herself had invited scrutiny, saying in one proceeding that “I’m going to get in trouble for this,” then inviting the plaintiffs’ lawyers to file a new civil rights lawsuit against the NYPD and mark it as “related” to one she had just concluded. She also unwisely distinguished herself from her colleagues on the Manhattan federal bench, saying that unlike them (many former U.S. prosecutors), she did not “defer” to the government.
The entire episode reminds us of the virtues of care and patience. Four judges of stellar reputation have regrettably demonstrated that impatience and impulsiveness against which the virtue of judiciousness counsels.
Board members Lawrence Lustberg and Edwin Stern recused from this editorial.