The Judiciary

Sailer points out that the Second Circuit Court of Appeals has quashed Judge Scheindlin’s injunction to stop-stop-and-frisk in New York City which she issued because, despite being an extraordinarily effective mechanism which has helped to reduce violent crime in NYC by an order of magnitude (but allowed nowhere else), it was … well … what was wrong with it again?

Oh you know that answer.  ‘Das raciss!’ she argued.  In 90,000 words over 237 pages.  Forget term limits, we need word limits.  The New York Times editorial board is not happy with the stay.  A bad ruling.

Here’s what Mayor Billions Bloomberg said at the time:

Mayor Michael R. Bloomberg angrily accused the judge of deliberately denying the city “a fair trial” and said the city would file an appeal.

Striking a defiant tone, Mr. Bloomberg said, “You’re not going to see any change in tactics overnight.” He said he hoped the appeal process would allow the current stop-and-frisk practices to continue through the end of his administration because “I wouldn’t want to be responsible for a lot of people dying.”

Looks like he got his wish!  People like Bloomberg have a certain way of getting what they want.  Here’s a link to the actual appellate court order.  It’s … remarkable, in its own little way.  First of all it’s short.  Super short!  So short, I’m able to excerpt the operative text in its entirety [with emphasis supplied].

Upon review of the record in these cases, 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 impartiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s “related case rule,” see Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a),1 and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.

Accordingly, we conclude that, in the interest, and appearance, of fair and impartial administration of justice, UPON REMAND, these cases shall be assigned to a different District Judge, chosen randomly under the established practices of the District Court for the Southern District of New York. This newly-designated District Judge shall implement this Court’s mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals.

And … that’s it. Wow! (well, ‘Wow!’ to a lawyer anyway).

That ‘related case’ thing is a bit of legalese inside baseball, but it’s certainly not a slam dunk argument that she improperly applied the doctrine. Here an example of a definition:

A case is “related” if it involves one or more of the same parties and common questions of law or facts. If a “related” case is indicated, the case shall be referred to the judge with the earliest filed case. The judge shall determine in his or her discretion if the case(s) should be considered related.

I don’t see any evidence or argument that Scheindlin abused her discretion here, the cases have enough overlap and nexus to make a plausible case.

The standard for abuse of discretion is that it’s completely obvious to any reasonable person that you can’t make a plausible case, that you’re being irrational or biased in the face of overwhelmingly contrary evidence.  The kind of bias that might arise if, say, you’re vulnerable to corrupt non-application of the law because you have something to gain by the outcome.  More on that in a bit.

But, usually, if an appellate court were to make such an accusation, they would, you know, make at least some effort to demonstrate that it was true.  Again, that’s the usual standard and practice for publicly humiliating a judge, kicking her off the case altogether, and overruling the lower court and staying an injunction.  But, they just asserted it without more.  Whatever, it’s all in the game.  I guess.

But it’s funny that, at the time, she actually said,

“[W]hat I am trying to say, I am sure I am going to get in trouble for saying it, for $65 you can bring that lawsuit.”

Ha!  Yeah, she was ‘priming the pump’ here a bit, giving a kind of informal advisory opinion on her willingness to entertain a related constitutional matter, but the thing is, judges do things like that all the time and no one blinks.  So, we have uncharacteristic emphasis and unsupported assertion and … well … it’s odd.

But let me break down the rest to you even further.  Judge Scheindlin gave a bunch of media interviews after she issued her ruling and injunction.  Furthermore, she was doing so in order to try and bolster the appearance of impartiality related to her ruling; to demonstrate to the public that it was founded in fact and law and not a result of some liberal activist judge’s bias.  Whoops!

Now, there are similar codes of professional responsibility in every jurisdiction, but again, Judges in prominent cases do this all the time without being accused of bias or ‘appearance of impartiality’.

Even when it turns out that they were, you know, not personally disinterested in the results of the case and probably should have recused themselves.  Let’s look at the case of another Judge who made a decision with personal impact, and without recusing himself, and who had, almost immediately, and often since, talked to the media repeatedly about it.

Judge Vaughn Walker (NB: appointed by George H.W. Bush)  Judge Who Struck Down Proposition 8 Knew Case Would Go Far.

Walker is the judge who struck down the state’s ban on same-sex marriage in 2010

… when California’s ban on same-sex marriage was assigned to Walker, he confesses that it did give him a moment’s pause, because Walker is gay.  “Yes, I gave it thought, of course,” Walker says. “But I had been open for a long period of time.”

Well, ok then!  But, you know, when you are open about holding stock in a mutual fund with, say, Vanguard, or having some relative employed with Exxon, or if your son attends VMI, then you are expected to recuse yourself from cases involving Vanguard, Exxon, or VMI.  Openness has nothing to do with it.

Still, no one overturned Judge Walker’s ruling, or accused him of compromising the appearance of impartiality merely by talking to the press, or, for that matter, actual partiality.  They certainly wouldn’t have accused him without explaining how it compromised impartiality, or what he said that made him appear partial.  Do we have an unannounced new standard of strict liability and Malum in se with regard to conducting media interviews?  Or does that just apply to Scheindlin?  Just this once.

Now, it’s true that the appellate court wants to avoid deciding anything on the merits of the case for many, many months.  They don’t want to actually point out any statement of law or fact in the opinion that are prima facie ludicrous, because … well they may hit something sensitive and useful.  So best take one’s time and tread carefully.

But the real problem here is that it is easy to show that Scheindlin abused her discretion and made some ludicrous claims.  In her opinion, she didn’t even call anyone out as a racist (that might involve disciplining or – gasp! – firing someone), but mentioned the mysterious, invisible, yet sinister and ubiquitous dark forces of ‘unconscious bias’.  To ‘prove that’ she used some awfully suspect statistics.

Please, dear reader, allow me to supplement and repeat some points I made at the time:

From page 44 of her opinion,

“Furtive Movements” is vague and subjective. In fact, an officer’s impression of whether a movement was “furtive” may be affected by unconscious racial biases.”

Oh brother.  She goes on at length about the effects of unconscious bias. The Cathedral at work – from clever Progressive Intellectual innovation to the Sociology Professor, to the Law Professor, to the Judge to rewriting the Constitution in a few years. There’s this gem:

Unconscious bias could help explain the otherwise puzzling fact that NYPD officers check “Furtive Movements” in 48% of the stops of blacks and 45% of the stops of Hispanics, but only 40% of the stops of whites. There is no evidence that black people’s movements are objectively more furtive than the movements of white people.

That’s it? The difference between 48% and 40%? Is there ‘no evidence’ that blacks have a higher criminality rate than whites at least this large? Would that account for the stunningly huge 48% to 40% disparity?

No. The science is settled. So is the law.

Now, again, the white rate is fully 83.3% of the black rate – that wouldn’t even qualify under the generous EEOC standard.  As Mayor Bloomberg asserts, given the enormous racial differentials in criminality, this statistic means exactly the opposite of what the Judge says it does.  It means they aren’t stopping-and-frisking blacks enough compared to whites, not too much.

And she said, “there is no evidence … that furtive movements are associated with … ” [being a criminal].  Well, no evidence except for the fact that the word’s definition associates it with criminality:

1. Attempting to avoid notice or attention, typically because of guilt or a belief that discovery would lead to trouble; secretive.
2. Suggestive of guilty nervousness.

So, if an the appellate actually wanted to stay an injunction by argument showing how crazy the lower court ruling was, instead of bald assertions it never uses in similar circumstances, it could easily have pointed to these embarrassing violations against both logic and language.

I guess we’ll have to wait for the ruling ‘on the merits’ to see that.

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4 Responses to The Judiciary

  1. Steve Johnson says:

    There is no evidence that black people’s movements are objectively more furtive than the movements of white people.

    I’ve got an idea.

    We can hire people to go out and gather statistics on furtive movements then we analyze the data. If the data then reflects that blacks and Hispanics make more furtive movements then we have some evidence. Might as well check people stopped for weapons too.

    We could call the data gathering process “stop and frisk”.

    Oh wait, looks like there exactly is evidence that blacks and Hispanics are objectively more furtive.

  2. VXXC says:

    Stop and Frisk remains, the name may to be changed to protect the innocent.

    Which is the point.

  3. XYZ says:

    That’s really an extraordinary ruling from the circuit. Maybe the idea is that the district court’s ruling, while getting at the correct Right Thinking result, was just embarrassingly stupid. It does seem, though, that stop-and-frisk is just a poorly put together program. Obviously, the Cathedral wants its vanguard class (sorry for mixed metaphors) safe in NY, but couldn’t they have come up with a subtler way to institute the program? Or do they believe (perhaps not unreasonably) the proles in the NYPD aren’t capable of getting the message unless they’re issued an explicit rulebook?

    • Handle says:

      Stop and Frisk is actually a pretty well-run program. There are an army of lawyers paid to make sure it’s designed and operated in a way so as to make it as legally-bulletproof as possible. Believe me, they know what they’re doing, and it works.

      Here’s what ‘s truly extraordinary about the Circuit ruling that I neglected to highlight. We’re talking about violating constitutional rights here for everyone (abusing the Terry Stop doctrine exception to the Fourth Amendment), which is one thing. But then we’re violating those rights in a way that is (purportedly) racially discriminatory without justification.

      So, if you buy any of that, it’s completely typical for a Judge to issue an injunction banning the practice on both grounds. If the Appellate court really thinks the Judge compromised the appearance of neutrality and want’s to replace her on the case, well, that’s one thing. But it has no logical connection to staying the injunction, which you should have an independent reason to do.

      But they stated no reason. That’s equally extraordinary and suspect. It’s really a non-sequitur to go from Judicial Misconduct to staying an injunction that prevents the ongoing and racist violation of civil rights. If you think the reasoning behind the injunction is suspect then forget about the merits; throw out the case altogether and order a complete rehearing.

      But they didn’t do that – they just stayed the injunction. Bloomberg got exactly what he wanted, by hook or by crook.

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