Lame Duck Litigation and the City of New York’s “Double Game”

By Anil Kalhan

Events have moved quickly this week in the City of New York’s appeal of U.S. District Judge Shira A. Scheindlin’s decisions concluding that the New York Police Department has engaged in unconstitutional racial profiling in its “stop and frisk” practices. On Wednesday, several prominent lawyers and law professors—NYU Law School Professors Burt Neuborne, Norman Dorsen, and Arthur Miller; Yale Law School Professor Judith Resnik; and former New York City Corporation Counsel Frederick A.O. Schwartz, Jr.—filed a motion on behalf of Judge Scheindlin challenging last week’s decision by Second Circuit Judges José A. Cabranes, John M. Walker, Jr. and Barrington D. Parker, Jr., summarily concluding that she had violated the canons of judicial conduct and, on that basis, immediately dismissing her from presiding over the stop and frisk cases. The motion argues that the three judges “breach[ed] ... the norms of collegiality and mutual respect that should characterize interactions between District and Circuit judges” by failing to afford her notice and an opportunity to respond to its charges and violated the First and Fifth Amendments to the U.S. Constitution.

The next day, a spokesperson for outgoing Mayor Michael Bloomberg’s Law Department announced that the Bloomberg administration would double down on what has long been a “double game” of actively waging a campaign against Judge Scheindlin’s character and integrity outside the courtroom while simultaneously declining to formally seek her recusal or disqualification in the litigation itself:

In light of the Circuit Court’s determination that the actions of Judge Scheindlin “ran afoul of the Code of Conduct for United States Judges” and compromised “the appearance of impartiality,” the City will file a motion in that Court by early next week asking it to immediately vacate Judge Scheindlin's rulings.

Late last night, outgoing Corporation Counsel Michael A. Cardozo filed that motion under his own signature. Cardozo’s motion is a truly brazen document, aggressively bringing the Bloomberg administration’s ongoing public campaign to malign Judge Scheindlin into the courtroom itself. The motion takes the thinly supported statement by Judges Cabranes, Walker, and Parker in their now widely criticized order that “the appearance of [im]partiality surrounding the litigation has been compromised” and then stretches and recharacterizes that statement as supposedly having gone much further to have “revealed” the actual partiality and impropriety of Judge Scheindlin in all of the litigation’s proceedings—something that Judges Cabranes, Walker, and Parker most certainly did not themselves find or really even suggest. On that basis, Cardozo’s motion then simply repackages all of the Bloomberg administration’s longstanding substantive grievances as issues that supposedly involve judicial ethics, wildly asserting that all findings and conclusions by the District Court with which the Bloomberg administration disagrees on the merits—including its disagreements about the District Court’s technical application of the Southern District’s related cases rule, which is the kind of local procedural rule whose application appellate courts ordinarily evaluate with great deference—now magically constitute evidence of actual bias, total and overt hostility, bad faith, and judicial misconduct. Without any trace of irony, Cardozo’s motion expressly includes in its lengthy catalog of these supposedly “tainted” aspects of the litigation the District Court’s references to news articles that were not formally part of the record.

Outgoing Corporation Counsel Michael A. CardozoThe contortions in which the Bloomberg administration’s lawyers have engaged in this litigation suggest that extreme yoga must be a prerequisite for employment in Cardozo’s office. At no point during the many years in which the stop and frisk cases have been pending before Judge Scheindlin have the City’s lawyers formally sought her recusal or disqualification or formally alleged any violations of the canons of judicial conduct. Indeed, the motion filed on behalf of Judge Scheindlin states that at one point, Cardozo himself “appeared personally in the District Judge’s chambers to apologize for the misleading assertion” by the NYPD and City Hall concerning her supposed bias “and to disclaim responsibility for it.” At the same time, Bloomberg administration officials have persisted in their efforts to delegitimize Judge Scheindlin and the stop and frisk litigation itself by throwing around unsubstantiated allegations of her supposed actual bias. And now, with Judges Cabranes, Walker, and Parker apparently having given the appearance (to the Bloomberg administration, at least) of judicial imprimatur to those unsubstantiated allegations—even though the panel itself has never endorsed those allegations directly or specifically—Cardozo has eagerly come flying into court to cash in on precisely that for which (at least on the account provided by counsel for Judge Scheindlin) he personally apologized and disclaimed responsibility in the judge’s chambers. As “double games” go, this one is pretty unsubtle—and more than a bit weird.

Moreover, Cardozo’s own conduct in this very litigation could reasonably be understood as being tainted by his own variant on “judge-shopping.” As Judge Cabranes recounted at great length during oral argument on the City’s stay motion, in the immediate aftermath of the District Court’s decisions in August the City’s lawyers pursued its appeal “at a snail’s pace”:

[JUDGE CABRANES:] I have the greatest respect for you and for your boss Mr. Cardozo and for the staff of the corporation counsel so I don't want you or anyone else to misunderstand my comments or questions as expressions of personal or institutional hostility. But I do think this has to be said for starters. A reasonable observer reviewing this record, the record of this appeal, could think that the City government has been speaking out of two sides of its mouth--its proverbial or metaphorical mouth. It's been castigating the District Court publicly and forcefully for its orders while actually pursuing this appeal at what I regard as a glacial pace, at a painfully slow pace.... [I]t seems to me that for whatever reason the City has been dragging its feet and dragging its feet quite deliberately. I am not saying that the New York City Police Department, your client, has been moving at a glacial pace. I am saying that the City's lawyers for whatever reason have been moving at a glacial pace. ...

[I]t seems to me safe to say that if you had acted with real urgency at certain points you could have been before this Court asking for a stay a long time ago....

Judge Cabranes contrasted the City’s “leisurely” approach to its appeal with the approach taken by the litigants in the campaign finance case heard and decided by the Second Circuit just two weeks earlier, New York Progress & Protection PAC v. Walsh, in which the parties “moved quickly ... by saying this is urgent, we need to be heard as soon as possible,” and were able to obtain expedited briefing, argument, and adjudication of their appeal within a week. Judge Cabranes then opined to the lawyer arguing for the City that he was “quite certain that your client [i.e., the NYPD] couldn’t possibly be happy with” the “painfully slow” pace at which the City’s lawyers were proceeding. Later, in an exchange with counsel for the Office of the Public Advocate—which is the current office of the new Mayor-Elect, Bill de Blasio, and which appeared as amicus curiae—Judge Cabranes intimated that the panel might “telescope the briefing schedule to make [the appeal] ripe for decision before January 1,” something that at that point none of the parties had ever sought.

The next day, the City’s lawyers abruptly reversed course to heed the suggestions implicit in the panel’s questions and comments. After months of acting in a manner that any reasonable observer would conclude had demonstrated, rather decisively, that the City could not show any irreparable harm in the absence of a stay—and after previously having its motion for an expedited appeal denied by the Second Circuit, in an order by Judge Richard Wesley—the City’s lawyers asked the panel to order a briefing schedule (which the panel declined to adopt) that would enable the cases to “be heard and decided by the end of the year.”

There really isn’t much of a mystery about what is going on here. With a panel of judges (1) appearing to criticize the City’s lawyers for prosecuting its appeal too slowly and for not adequately representing the NYPD’s interests as a client, (2) appearing at oral argument to be favorably inclined toward the Bloomberg administration’s substantive positions on the merits, at least as those positions were raised and presented in the context of whether a stay should issue, (3) summarily ousting a District Judge against whom the NYPD and City Hall had waged an aggressive public campaign for months, and then (4) announcing its plans to hold on to jurisdiction over the merits of the appeal, the Bloomberg administration is eagerly racing to have that panel act swiftly to vacate Judge Scheindlin’s decisions before January 1 by any means necessary—whether on the merits, as it proposed last week, or by further assaulting Judge Scheindlin’s character and integrity, as it proposes now—in order to eliminate the District Court’s decisions altogether before the Mayor-Elect takes office and eliminates the appeal. In essence, Cardozo’s motion invites the Second Circuit to take the outgoing, lame duck Mayor’s side in what is fundamentally a political dispute with the Mayor-Elect—a dispute that one reasonably would think was resolved, more appropriately and decisively, on Election Day, when the candidate who visibly and actively embraced Bloomberg’s position on the stop and frisk appeal was crushed by the widest margin in any mayoral election in the City’s history not involving an incumbent. Perhaps most shamefully, Cardozo’s motion proposes to do so at the expense of Judge Scheindlin’s reputation under circumstances in which she has had no meaningful opportunity to defend herself against a raft of serious but questionable allegations that have been casually leveled by the motions panel itself and the Bloomberg administration.

In a certain sense, therefore, the circumstances surrounding the Bloomberg administration’s aggressive, lame duck prosecution of this appeal increasingly seem reminiscent of President Clinton’s impeachment in 1998. In December of that year, Clinton was impeached by a lame duck Congress whose aggressive pursuit of impeachment had been repudiated in the previous month’s midterm election, making it highly uncertain whether the new Congress in fact would have voted to pursue Clinton’s removal from office. Somewhat against the grain of public discussion at the time, Professor Bruce Ackerman questioned not whether the claims against Clinton rose to the level of impeachable offenses, but rather the legitimacy of a lame duck House of Representatives taking that action at all. (The lame duck House of course proceeded to impeach Clinton in any event, and Clinton was subsequently acquitted in the Senate.) Ackerman advanced a somewhat technical constitutional argument that obviously is not directly relevant here. But the underlying dynamic surrounding the Bloomberg administration’s race to obtain a final decision from the Second Circuit before de Blasio takes office—in the face of a diametrically opposed position by the Mayor-Elect, after the Bloomberg administration’s position was decisively rejected at the ballot box—has a similar character. Still another motion filed in the Second Circuit this week—by police unions moving to intervene, in an effort to continue to prosecute the appeal even if Mayor-Elect de Blasio decides to withdraw it—may be seen in a similar light.

Second Circuit Judges José A. Cabranes, John M. Walker, Jr., and Barrington D. Parker, Jr.The questions that all of these motions now present for adjudication illustrate the potential harms arising from the appearance of impropriety and partiality that Judges Cabranes, Walker, and Parker may have created with their opaque and procedurally irregular rush to judgment based apparently on what they read in the newspapers. Of course, all three are distinguished, long serving, and highly respected judges, and one certainly must presume that they have acted with good faith, sincerity, and impartiality. But as Dean Erwin Chemerinsky wrote in the New York Law Journal last week, “[j]udges are human,” and the nature and circumstances of the panel’s order makes it appear that the panel got “caught up in the ... deep emotions” of this highly charged case and “rushed to quickly take sides.” If Judges Cabranes, Walker, and Parker now were to issue a longer opinion in support of their decision to oust Judge Scheindlin, observers invariably and reasonably would question whether, in light of the highly questionable nature and circumstances of their original order, the three judges simply were—at a minimum—rationalizing and justifying a preconceived result that they had already made clear that they wished to reach, rather than making a genuinely considered and reasoned determination after fully and impartially evaluating the merits of the arguments presented and the record before them. After all, while courts do occasionally delay the issuance of detailed reasons explaining their rulings when exigent circumstances demand that decisions be rendered immediately, they typically give at least some explanation or indication of why that kind of expedited decision is necessary. And in this case, not only did the panel not point to any exigent circumstances that demanded haste in ousting Judge Scheindlin, but it also seems highly unlikely that it could have done so, since—as the “glacial pace” of the City’s own prosecution of the appeal until after last week’s oral argument confirms—no legitimate circumstances genuinely demanding that immediate action really existed. Observers would undoubtedly pose similar questions, for similar reasons, if the panel were to heed the Bloomberg administration’s scorched earth tactics to eliminate Judge Scheindlin’s decisions before Mayor-Elect de Blasio takes office—especially given the extent to which the City’s shifts in the pace of its appeal appear to have been reshaped almost directly in response to suggestions implicit in the motions panel’s own detailed questions and comments challenging the litigation strategies that the City previously had chosen.

In this context, how the motions panel itself responds is not the only important question arising from the flood of motions coming before the Second Circuit in this appeal. A more interesting and consequential question may be whether, when, and how the Second Circuit’s active judges, sitting en banc, might or might not choose to intercede in what U.S. District Judge Richard Kopf has aptly termed an “utterly depressing cage match.” Laudably or notoriously, depending upon your perspective, the Second Circuit has not historically reviewed the decisions of its panels en banc at anywhere even remotely close to the rate at which other circuits do so. In this litigation, however, the unusual and highly charged drama wrought by the motions panel’s decision, along with the cascading effects of that decision on the litigation, seems to warrant the full court’s prompt attention more and more with every passing day.