Justice Scalia and Judge Scheindlin – Friendships and Relatedness

What Judge Scheindlin is being subjected in the public square is both excessive and manifestly unfair – not just to her and her well-earned reputation, but to all judges upon which our Republic relies upon to keep America exceptional”, says the author

No matter which side one may be on the NYPD Stop-and-Frisk debate, given the 1976 New York De Bour standard requiring “reasonable suspicion” and the now-over Mayoral election between Bill de Blasio and Joe Lhota, we are all on the side of the Constitution. Most even feel that the Constitution is not a suicide pact; especially, after 9/11 when we need to defend public safety from enemies foreign and domestic. But when politics is at play, law becomes a target by shooting at the judge. Hence, politics and law make bad bed fellows. Most are also on the side of judicial economy being a predicate for the related-case procedure, as the Second Circuit panel exemplified, as well as to avoid venue, and judge, shopping by litigants – hence, 1406 corrective-motions and “related case” questions in Civil Cover Sheet and Request for Judicial Intervention. All honest litigants are against a judge who pre-judges a case or judges a case on something other than the merits, defined by admissible evidence. Judicial independence, a/k/a judicial impartiality, is the core engine of American Exceptionalism rooted in our separation of powers regime. We owe ourselves and our children’s children an impartial judiciary. So the all important Third Branch, lacking executive “police power” or legislative “purse power,” relies only upon societal respect to be able to deliver on its vital Constitutional role: to decide a dispute, even a Constitutional one, with finality.

Judicial respect then is equal to the aggregate of all judicial reputations. Furthermore, a judge’s reputation cannot be divorced from a judge’s ability to continue to judge a pending or future case. I recall the lesson taught us all by Associate Justice Nino Scalia, when thrust into a presidential political barbeque over the famous vice president Dick Cheney’s Duck Hunting trip in January 2004, he took the unprecedented step of lawfully issuing a 21-page official Memorandum to defend his honor, impartiality and integrity. Even a judge has some First Amendment rights allowed by the Code of Judicial Conduct. In that Memorandum, Justice Scalia argued that if a duck hunting trip would be enough to swing his vote, “the nation is in deeper trouble than I had imagined.” Justice Scalia argued that throughout history, justices have been friends with highranking government officials and that then-recently other justices had socialized with Mr. Cheney at the vice president’s home during Christmas 2003 – and yet, no recusal was demanded or warranted. Indeed, I have often cited President F. D. Roosevelt’s act of playing cards with the Justices on Sundays, and The Court holding his New Deal laws unconstitutional on Mondays as proof that there can be a separation between social friendship and intellectual impartiality in persons of honor and integrity.

Justice Scalia further argued, perhaps, based upon the rule of necessity, that “[A] rule that required members of this court to remove themselves from cases in which the official actions of friends were at issue would be utterly disabling.” So, it’s fair to say that our Republic has survived many “ducks,” be they French, Peking or American. But how the bench and bar deal with one’s own, can both inform the public square into disrespectful hyperventilation as well as chill the adversarial system into a supplicant roll-over process. A judge, any judge, like Justice Scalia, must be free to speak so long as it is not a comment on the pending case or its trajectory. Of course, a judge’s right to speak is most robust, perhaps, even without limit, when doing so “on the record” hearing a case. Yet, whenever electoral politics is near any case, judges are at a serious disadvantage to the political harpooning they are subjected to, lacking the ability of a Clintonian “Rapid Response.” The “spine” of Bar Associations has weakened and the “decibel” lowered, perhaps, due to being overworked or enhanced fear of standing tall. Either way, society’s durable and deliberative guides, the bench and bar, are not what they used to be. What Judge Scheindlin is being subjected in the public square is both excessive and manifestly unfair – not just to her and her well-earned reputation, but to all judges upon which our Republic relies upon to keep America exceptional. The bench and bar must act to re-calibrate the public discourse, before we hurt the judicial-baby in the bath water and devalue judicial respect for all.

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Volume 10 Issue 41 | New York | Oct 21

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