The Second Circuit issued two orders today concerning the removal of Judge Scheindlin from the stop-and-frisk litigation. In the first Order, the Second Circuit ruled that she lacked standing to intervene to seek to vacate the ruling removing her:

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.

The Second Circuit also rejected the suggestion, in a letter from Judge Schiendlin’s lawyers, that the panel vacate its order without prejudice, so as to avoid a “distracting” and “unseemly dispute among judges”:

First, we cannot subscribe to the view that a decision of this Court—made pursuant to a statute passed by Congress—should be vacated because a non-party (even a judge) claiming to be affected by that order believes that the issue has become controversial or “distracting.” Second, as we observe in our accompanying opinion, reassignment is an ordinary tool used by our judicial system to maintain and promote the appearance of impartiality across the federal courts.

In the second Order, the Second Circuit explained that it removed Judge Scheindlin because, during a hearing on an earlier stop-and-frisk case, she “described a certain claim that differed from the one at issue in the case before her, urged [the plaintiffs] to file a new lawsuit to assert the claim, suggested that such a claim could be viable and would likely entitle the plaintiffs to documents they sought, and advised [the plaintiffs] to designate it as a related case so that the case would be assigned to her” — all of which created a situation where “a reasonable observer could question the impartiality of the judge.” In a footnote, the panel appeared to conclude that the two cases were not “related” under the Southern District’s local rules:

We also note that, for civil matters, the Rule explicitly anticipates cases being marked as related to “earlier-filed case[s] . . . then pending,” see Rule 13(c), which is “designed to reduce litigants’ costs by informally consolidating proceedings in related cases,” Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343, 347 (2d Cir. 1995).  Here, at the time Floyd was filed in January 2008, Daniels, to which it was accepted as “related,” was closed.

Finally, the Second Circuit also noted that her media interviews “exacerbated” the situation:

While nothing prohibits a judge from giving an interview to the media, and while one who gives an interview cannot predict with certainty what the writer will say, judges who affiliate themselves with news stories by participating in interviews run the risk that the resulting stories may contribute to the appearance of partiality. It is perhaps illustrative of how such situations can get out of the control of the judge that, later in The New Yorker piece, the article quotes a former law clerk of Judge Scheindlin: “As one of her former law clerks put it, ‘What you have to remember about the judge is that she thinks cops lie.’” Further, in those two articles, as well as the New York Law Journal article, Judge Scheindlin describes herself as a jurist who is skeptical of law enforcement, in contrast to certain of her colleagues, whom she characterizes as inclined to favor the government. Given the heightened and sensitive public scrutiny of these cases, interviews in which the presiding judge draws such distinctions between herself and her colleagues might lead a reasonable observer to question the judge’s impartiality.

Our prior posts on the case are here.