Second Circuit slaps down judge in NYPD stop-question-and-frisk case

In the early days of Power Line, we got word that a noted jurist liked the site, but thought we should write more about Court of Appeals decisions. My thought, as a practicing lawyer, was that Power Line was a vehicle for me to write about things other than court decisions.

Since I’m no longer a practicing lawyer, my only excuse for not writing about Court of Appeals decisions is lack of significant interest. But the past few days have produced several Court of Appeals decisions that do interest me.

For example, in a short Order, the Second Circuit has blocked the enforcement of a district ruling that had ordered sweeping reforms to the New York Police Department’s use of stop-question-and-frisk. Perhaps even more notably, the Court removed from the case the federal judge who issued the order against the NYPD.

The judge in question is left-winger Shira Scheindlin. The Second Circuit found that Judge Scheindlin violated Canon 2 of the Code of Conduct for United States Judges, which provides that “a Judge should avoid impropriety and the appearance of impropriety in all activities.” In addition, she violated Canon 3, which insists that a judge remove herself from a case where her “impartiality might reasonably be questioned.”

That Judge Scheindlin’s impartiality might reasonably be questioned seems clear. The Second Circuit cited her suggestion, in other litigation, that plaintiffs bring suit against the NYPD over stop-question-and-frisk, with the understanding that she would handle that suit. Scheindlin recognized that her suggestion was problematic. At the time, she stated, “I’m sure I’m going to get into trouble for saying it. . .”

Good call.

The Second Cirucit also cited “a series of media interviews and public statement” by the judge “purporting to respond publicly to criticism of the District Court.” The appeals court mentioned, among other media reports, a New Yorker puff piece by Jeffrey Toobin about Scheindlin.

Quite apart from the bias Scheindlin demonstrated in Toobin’s piece, his article is fascinating because it captures in a nutshell the essence of liberal judging. The judge tells the author: “I don’t love trials; they are not a good way to tell a story.” What Scheindlin loves is writing opinions. For in doing so, “you get to do what you think is right, what you believe in. You’re pushing the margins of the envelope, being willing to be creative.”

In short, you get to play God for a while.

As Heather Mac Donald and others have shown, Scheindlin pushed the margins of the envelope too far in her stop-question-and-frisk decision. I hope the Second Circuit enjoyed writing the opinion that pulled the plug on her.

Toobin, by the way, is incensed about Scheindlin’s removal. That’s understandable. Judges now may think twice about accepting the bargain he offers them: sing to me and I’ll help make you into a liberal icon.

Unfortunately, the NYPD’s policy will not prevail, whatever the ultimate outcome of the litigation. As Patrick Brennan notes, Bill de Blasio, who is about to be elected mayor, has made it clear that he will change the policy. But, as Brennan also points out, if the court eventually strikes down Scheindlin’s original ruling, de Blasio won’t be able to cite the legal precedent for whatever reforms he’d like to make of the NYPD. Thus, he will be accountable for any spike in crime that follows his reforms.


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