Which Judges Breached the Rules?
By Judge Nancy Gertner
As a former U.S. District Court judge, I believe that the rules about judicial speech are too restrictive. But last week’s decision from the Second Circuit panel highlighted the importance of other rules of conduct – and it was the members of the Second Circuit, not Judge Schira Scheindlin, who violated those rules.
The three members of the panel, Judges Jose Cabranes, Barrington Parker and John Walker, expressed concern about the assignment of the stop-and-frisk case to Judge Scheindlin (the “related-case rule”) and about her public comments, which they said were about a pending case and were therefore improper. In fact, it was their acts that violated procedural fairness, and their acts that forced the judge to make a public statement about a pending case – in order to rebut their accusations
No party had moved to disqualify the judge – not during the years at the trial court level, not on appeal. No one challenged the case’s assignment to Judge Scheindlin. No party complained about her interviews with the news media. Without a party raising these issues, for the panel to do so was a “cheap shot.” The Appeals Court doesn’t have the right to just review anything it wants.
Even more significant, had the parties moved for disqualification, the judge would have written a decision, explaining what happened. None of the accusations against her was sound, and a fair process would have shown that.
The judge’s most vehement opponent here was not a party, but rather Mayor Michael Bloomberg, who used the media to attack her participation in the case. But judges are not supposed to cave into political pressure, not listen to the press drumbeat; that is what judicial independence means.
The scandal of this case is not about judicial speech or the assignment process. It is about disrespecting the parties and the process, not to mention a fine judge. I’m glad the case has led to a conversation about judicial impartiality. I just hope we see who the transgressors are, and see that Judge Scheindlin is not one of them.