Judge Scheindlin's motion asking the Second Circuit Court of Appeals to withdraw its orders until she's been given a chance to defend herself against its allegations of impropriety and bias has been declined.
As unusual as the court's decision to remove her from the controversial case was, Scheindlin's motion was even more so. The Second Circuit's decision doesn't spend much time revisiting its own unusual actions (that's handled in a separate opinion), and instead simply notes that Scheindlin really doesn't have much, if anything, in the way of seeking recourse for her sudden removal.
A brief revisiting of the events leading to Scheindlin's removal sets the stage:
After some delay, the City sought, in the District Court, to stay those remedies until a decision on the merits had been reached by the Court of Appeals in the normal course. Judge Scheindlin denied that motion and, as is the normal practice, the City renewed its request for a stay in this Court. We held extended oral argument and, on October 31, 2013, granted the motion for a stay during the pendency of the appeals and, based on the record of the proceedings in the District Court and Judge Scheindlin’s participation in media interviews, reassigned the cases to a different district judge, to be chosen randomly, in order to avoid the appearance of partiality.
The problem with this recitation is that it assumes the basis for the court's removal of Scheindlin is solid. Obviously, the court that removed her would believe so, but that's a tough sell elsewhere
-- especially when it relies so heavily on three interviews (linked to in my previous post
) that don't seem to give the same impression to other readers
that it did to these three judges. As for the matter of nudging a plaintiff towards filing a case as related (the Floyd v. New York
case), that claim relies on a couple of quotes from a lengthy proceeding and her instruction to mark this case as "related" so it would route to her is something other judges have stated they would have done in the same position
. Adding it all up, the entity displaying the most impartiality seems to be the Second Circuit Court itself.
Having decided her removal was merited, the court moves on to why it won't
be entertaining any arguments otherwise. Very simply, there's no procedural basis for either of the motions filed on her behalf -- either representing herself or having her legal reps appear as amicus curiae. (Yes. Her legal team did that as well
We conclude that Judge Scheindlin’s motion lacks a procedural basis. As explained more fully in our separate opinion concerning the merits of the order of reassignment, the cases were reassigned not because of any judicial misconduct or ethical lapse on the part of Judge Scheindlin—as to which we have expressly made no finding— but solely pursuant to 28 U.S.C. § 455(a). Section 455(a) provides that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify [her]self in any proceeding in which [her] impartiality might reasonably be questioned.” We know of no procedural mechanism that might permit a district judge to come before us and argue on her own behalf in these circumstances, nor has Judge Scheindlin identified one.
In other words, Scheindlin should have recused herself at some point due to an appearance of impropriety or partiality that even the Second Circuit court has "expressly made no finding" in terms of the merits of those claims. And since she failed to do so at the merest hint
of this "appearance," the circuit court did it for her.
Further arguments against Scheindlin's motion fall along the lines of "This sucks for you subjectively, but that subjective suckage isn't reason enough to generate a bunch of new precedents for these situations. Try not to take it personally."
We know of no precedent suggesting that a district judge has standing before an appellate court to protest reassignment of a case. While a district judge may believe that he or she has expended a great deal of effort and energy on a case, only to see it reassigned, reassignment is not a legal injury to the district judge. Rather, reassignment allows the courts to ensure that cases are decided by judges without even an appearance of partiality. A district judge has no legal interest in a case or its outcome, and, consequently, suffers no legal injury by reassignment.
To the extent that Judge Scheindlin seeks to defend herself against the suggestion of violation of the Code of Conduct for United States Judges, our accompanying opinion explains that we have made no findings that Judge Scheindlin has committed judicial misconduct, nor have we suggested that she has abdicated any of her ethical responsibilities. Rather, we have simply concluded that the appearance of her impartiality might reasonably be questioned. We therefore need not consider Judge Scheindlin’s argument that she ought to be afforded an opportunity to contest charges of judicial misconduct.
While I disagree with the court's assessment (which it continues to assert is not
an assessment) of Scheindlin's bias, I really can't argue with its refusal to allow Scheindlin to defend herself against the allegations it repeatedly claims it never raised. The underlying basis that a presiding judge has no legal
interest in the outcome of cases, and therefore suffers no legal
injury when booted off cases, is a good baseline to uphold. Anyone concerned about "activist judges" should be pleased to see that Rule 21 (the Rule applied to remove Scheindlin) doesn't provide forcibly "recused" judges an avenue to argue their way back into a case they likely shouldn't be handling. This court's decision to boot Scheindlin may have a weak basis, but allowing this novel form of redress to get its foot in the door will only lead to further regrettable activity down the road.
This isn't to say I agree with the decision to remove Scheindlin -- just that I agree with the reasoning behind the denial of her motion. Scheindlin is correct in her assessment that she will suffer reputational damage from the circuit court's actions, and it would be great to see some avenue of recourse opened up for her, but an unprecedented en banc hearing (or her lawyers' somewhat bizarre "appearance as amicus curiae") isn't the right course to take -- not if we don't want every
Rule 21 removal to devolve into judicial "naked mudwrestling
The small positive aspect of this rejection is that the court claims it's playing it safe by removing Scheindlin at this merest appearance of partiality. If so -- if its assertions that it "makes no findings" as to her alleged bias and impropriety are true -- then any attempts to get the court to reverse the decision by using this removal as leverage will be ignored, and the appeals will simply be considered on their legal/constitutional merits alone. If not -- if the court has allowed its forced recusal to color its perception of Scheindlin's decision -- then this case will be booted back to the district court for reconsideration -- or overturned completely -- in record time.