Balkinization  

Wednesday, November 06, 2013

A Troubling Intervention by the Second Circuit

Frank Pasquale

The triumph of Bill DeBlasio yesterday in New York City's mayoral race will probably spell an end to the worst abuses of "stop & frisk" by the NYPD. But in the days before the election, three judges of the Second Circuit added a strange twist to the saga by launching an extraordinary intervention into the leading case on the matter. As Prof. Anil Kalhan has observed, a panel "issued what must surely rank among the most bizarre stay orders that court has ever issued" by "summarily dismiss[ing] Judge [Shira] Scheindlin from hearing the stop and frisk cases altogether—which no party to the litigation sought or briefed." Kalhan's whole post on the matter is well worth reading in full, but here are some highlights:
[A]s former U.S. District Judge Nancy Gertner has suggested, what does seem to present “unusual circumstances” in this case is the odd and irregular manner in which Judges Cabranes, Walker, and Parker themselves have rushed to dismiss Judge Scheindlin from these cases so aggressively and swiftly. While the motions panel purports to base its decision upon a review of the “record,” none of the information upon which it relies actually appears in the judicial record. Moreover, the panel also offers no explanation for its decision to launch an immediate strike to oust Judge Scheindlin from the case, as if there were a grave and imminent threat to the integrity of the judicial process simply by having her name associated with it, rather than awaiting full adjudication of the merits to fully ascertain what the precise circumstances of their remand ultimately would entail. As U.S. District Judge Richard Kopf has noted, “[i]f the appellate judges were worried about the judge’s impartiality, they could have called for a full exploration of that matter at a later date.”
The panel’s haste is particularly odd given its decision to grant to the City’s stay motion. After all, as Professor Judith Resnik observes, because the panel’s decision to grant the stay “left the district court with nothing to do” while the appeal is pending, there was no urgency for the panel to determine right away who would preside over the case upon remand.
Those who followed the Oneonta case in the 1990s may be unsurprised by the result here. But it is nevertheless deeply troubling.

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