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A little rational discourse on the issue from Harvard Law Professor Nancy Gertner, a former federal district court judge:

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.

It was the members of the Second Circuit, not Judge Schira Scheindlin, who violated the rules of judicial conduct. Their flawed decision shows why those rules should be followed. No party had moved to disqualify the judge – not during the years at the trial court level, not on appeal.  [...] Even more significant, had the parties moved for disqualification, the judge would have written a decision, explaining what happened. [...]

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.

I don't know if Judge Scheindlin did anything wrong. Based on what we know, I think the Second Circuit panel did.

Originally posted to Armando on Mon Nov 04, 2013 at 08:53 AM PST.

Also republished by New York City.

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