Scheindlin of the Times

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The New York Sun

Just when one thought that the stop-question-and-frisk story couldn’t get juicier someone throws an extra cantaloupe into the blender. In this case it’s Judge Shira Scheindlin, who has filed a motion with the Second Circuit protesting its decision to remove her from the case. She is unhappy that the appeals panel acted on its own without a motion from any of the parties. She suggests it relied on inaccurate news reports and failed to give her the kind of ­­­due process guaranteed by the Fifth Amendment.

That last item got our attention. The Fifth Amendment is one of the Constitution’s most famous limitations on the government. One of the things it says is that no person in America may be “deprived of life, liberty, or property, without due process of law.” The idea that a United States District Judge has a property right to preside over a civil case struck us as a — how to put it? — novel idea. So we called Judge Scheindlin’s lawyer, Burt Neuborne, a famous figure around the bar for his garrulous personality and his work on Holocaust claims.

Mr. Neuborne , a professor of law at New York University, tells us that he was not referencing the property right in the Fifth Amendment. Nor is he focusing on Judge Scheindlin’s right not to have her life taken without due process of the laws. What Mr. Neuborne had in mind, he tells us, is that it was Judge Scheindlin’s liberty that the Second Circuit has trifled with absent (in his view) due process. That seems to be his argument even though it was for the very absence of due process in her own court that the Second Circuit removed her.

Judge Scheindlin’s motion to be put back on the case is endorsed this morning by the New York Times, in an editorial that must be one of the most incredible angles to this epic. After all, it was the New York Times itself that first raised the issue of improper behavior on the part of the judge. That was in a now-famous story by its reporter Joseph Goldstein, who is the son of a professor of constitutional law and was practically weaned on the Constitution.

What Mr. Goldstein asked about is the “possibility of judge shopping,” as he characterized it in his story, which ran in May. He quoted Judge Scheindlin herself responding in court to plaintiffs who wanted to reopen an old case so they could accuse the NYPD of a “surge in racially motivated police stops under the policing practices of a new mayoral administration.” Mr. Goldstein quoted Judge Scheindlin as suggesting “a route other than trying to reopen the old case.”

“If you got proof of inappropriate racial profiling in a good constitutional case, why don’t you bring a lawsuit?” Mr. Goldstein quoted Judge Scheindlin as saying — and adding: “You can certainly mark it as related.” Mr. Goldstein quoted her as saying at another point, “For $350, you can bring that lawsuit,” a reference to the filing fee. “About a month later,” Mr. Goldstein reported, “the lawyers filed Floyd v. City of New York,” which is now at the center of the controversy.

Writing editorials about the terrific job done by a reporter of the New York Times is not our favorite line of work, even a Times reporter who once worked at the Sun. To the Times, though, we don’t mind saying that there are few things so satisfying as backing up one’s own reporter when he or she gets into the middle of a controversy. The Scheindlin case would be a great chance for the Times to try doing so. They might enjoy the genre.

The New York Sun

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