Even A Republican Former Chief Judge Thinks Stop-And-Frisk Judge’s Removal Was Dubious

CREDIT: Associated Press

On Thursday, the federal judge who issued a meticulous, 200-page opinion finding the New York Police Department engaged in unconstitutional racial profiling was removed from the case. U.S. District Judge Shira Scheindlin’s removal could, at the very least, mean that federal monitoring of NYPD’s stop-and-frisk program would be overseen by a different judge with an unknown commitment to enforcement. And legal experts overwhelmingly questioned the three-judge appeals panel’s decision to remove her without even a hearing or arguments, calling the rare move “extraordinary” and “shocking and inexcusable abuse.”

On Sunday, a former federal chief judge appointed by George H.W. Bush joined the chorus, saying the appeals court’s legal argument was “dubious at best.” He adds, “Actually, I was going to write that it was ‘bullshit,’ but decided against that description.”

U.S. District Judge Richard G. Kopf’s analysis on his blog, Hercules and the Umpire, hinged on the court’s determination that Scheindlin violated the “related case” rule when she rejected lawyers’ request to re-open another case challenging stop-and-frisk, and instead suggested that they file a new case with their racial profiling allegations that she would preside over as a “related case.” Kopf, like others who have commented on the case, explained that Scheindlin did what judges are expected to do when she instructed lawyers on procedure.

“The reason we have relatedness rules in the district courts is to avoid treating similar cases dissimilarly and because it wastes judicial resources by duplicating effort when two judges deal with similar issues,” he explains, noting that he has taken similar action in very high-profile cases. Because the explanation the three-judge panel provided their cursory was confounding, he added, many have instead turned to the unfortunate conclusion that the decision was politically motivated. He adds:

Unintentionally I am sure, the panel of highly regarded and very smart judges on the Second Circuit that too hastily disqualified Judge Scheindlin, herself a highly respected trial judge, fractured the unwritten but critical social compact between federal trial judges and federal appellate judges that should bind those judges together as they seek to fulfill a common purpose. In short, “eating your young” is not a good way to foster collegiality.

As Georgetown law professor David Cole wrote last week, the slight against Scheindlin also sends the message that retribution against judges who mandate racial justice may be alive and well.

In addition to removing Scheindlin, the appeals panel also blocked implementation of her ruling while the city’s appeal is pending — a less unusual move. But the appeal may become irrelevant by the time the appeals court makes a final ruling, no earlier than March. Among the front-runners in Tuesday’s mayoral race, Bill de Blasio says he would drop the appeal, while Joe Lhota says he would continue pursuing it. Dropping the appeal would not, however, have any impact on the court’s decision to remove Scheindlin.