Friday, November 01, 2013

Independent judges beware

It's incredible to me that more lawyers aren't upset about the attack on the independence of the judiciary.

First up is the Second Circuit deciding on its own to remove a judge (without any request from the parties) because she said that she wasn't afraid to rule against the government.  From Jeff Toobin's piece:

The United States Court of Appeals for the Second Circuit just chastised Shira Scheindlin, the trial judge in the case challenging the constitutionality of the N.Y.P.D.’s stop-and-frisk policy, for speaking out about the issue while the trial was going on. In a ruling today, the appeals court said Scheindlin’s statements suggested that her “impartiality might reasonably be questioned.” As a result, all further proceedings in the case, in which Scheindlin found that that city residents’ rights had been violated, will be transferred to another trial judge. The appeals court, in a footnote, in particular cited Scheindlin’s statements to me in a piece for The New Yorker, as well as to the AP and the New York Law Journal. (I have some familiarity with this sort of thing. )
This is preposterous. The Second Circuit took this action on its own, without even a request from the city (the defendant in the case). Apparently, it took the view that there had been such an egregious violation of the rules of judicial conduct that the court had to act on its own—sua sponte, as the lawyers say. It also stayed Scheindlin’s rulings aimed at reforming stop-and-frisk.
Scheindlin did nothing wrong. She talked about her judicial career and her history on the bench in a way that illuminated the work that all judges do. In my experience, it’s a common complaint from judges that the public doesn’t understand their work, and doesn’t care about what they do. Scheindlin’s conduct in this case exemplified the independent tradition of the judiciary. She should be honored for it, not scolded.

Next up is the GOP blocking a nominee to the Court of Appeals in DC:

Next Republicans, who have accused the president of trying to tip the court’s ideological balance in Democrats’ favor, quickly dispensed with the nomination of Patricia Ann Millett to the United States Court of Appeals for the District of Columbia Circuit. A former government lawyer whose husband serves in the military, she has worked in both Republican and Democratic administrations. The White House chose her as a test of how far Republicans would go to derail a qualified nominee.
Republican objections to Ms. Millet had nothing to do with her judicial temperament or political leanings. Instead, Republicans said they wanted to refuse Mr. Obama any more appointments to the appeals court, which is widely recognized as second only to the Supreme Court in importance and often rules on politically significant matters like presidential authority and campaign finance.
“Our Democratic colleagues and the administration’s supporters have been actually pretty candid,” said Senator Mitch McConnell of Kentucky, the Republican leader, who pressed his members hard to vote no. “They’ve admitted they want to control the court so it will advance the president’s agenda.”
Another confrontation — on these nominations or others — seems inevitable. Even as Republicans pledged to stop Ms. Millett, two more nominees to the appeals court were working their way through the Senate confirmation pipeline. Robert L. Wilkins, a Federal District Court judge, cleared the Senate Judiciary Committee on Thursday by a 10-8 party-line vote. Cornelia T. L. Pillard, a Georgetown law professor, was already approved by the committee and is awaiting a vote on the Senate floor.
The court is split evenly with four Republican and four Democratic appointees among the judges who regularly hear cases. Among the judges who are semiretired, five are seen as conservative, one as liberal.
There are still three vacancies that Mr. Obama is trying to fill. Republicans are pushing a bill that would eliminate those seats permanently because they argue the court has a light caseload.
That has prompted Democrats to accuse Republicans of trying to change the rules simply because they do not like the president who is picking judges.
“The judiciary is too important to play partisan games with,” said Senator Dianne Feinstein, Democrat of California. “And that’s exactly what’s going on here.”



Anonymous said...

The federal judiciary is set up to protect the government's interest. Plain and simple.

Tony Accetta said...

Sorry, but the Judge was way out of line. She engineered a case she suggested be brought so that it would go before her, then she publically discussed it while it was pending. Without absolute neutrality any judicial system is a farce. The Second Circuit is correct; even the appearance of impropriety must be eliminated.
Tony Accetta
Former AUSA

Anonymous said...

The panel that tossed her had two Clinton appointed judges and a GHW Bush judge.


Anonymous said...

Tony Acetta is a former AUSA?

Anonymous said...

Sorry, I may have confused the Tony Accetta in the comment above with Anthony Accetta. There is a Tony Accetta out of Colorado who was a former AUSA out of Denver. That said, I disagree with Mr. Accetta (from Colorado).