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Tuesday, November 19, 2013

Reassignment: A guest-post from Prof. Toby Heytens (UVa)

Reassignment (and the Scheindlin Controversy)

 Reactions to the Second Circuit’s recent removal of Judge Shira Scheindlin from the litigation involving New York City’s stop-and-frisk policy have been swift and fierce. Commentators have decried the court of appeals’ actions as "preposterous," "extraordinary ," or even "unheard of," particularly because the Second Circuit “took this action on its own, without even a request from the city.

The Second Circuit’s decision to remove Judge Scheindlin may well have been unwise and it certainly was clumsily executed. But it was not unique. To the contrary, as I discovered while researching my forthcoming article Reassignment, federal appellate courts have been ordering reassignment of federal trial judges for more than 50 years and they have done it more than 600 times. Although the line can grow fuzzy in individual cases (as, indeed, it did in this one), reassignment is distinct from recusal. Courts of appeals can and do order reassignment without concluding that the standards for recusal have been met. In fact, some of the cases in my data set expressly state that recusal is unwarranted and even more go to great lengths to disclaim any intention of challenging the removed trial judge’s impartiality. It also seems well established that, unlike recusal, reassignment may be raised for the first time on appeal and that it may, as it was in the Scheindlin case, be ordered by an appellate court on its own motion.

The Scheindlin case is unusual in certain respects, most notably its high public profile. But it is quite typical in other ways. The Second Circuit is a relatively frequent user of reassignment among its sister circuits; in fact, my article begins with a 1996 example in which the Second Circuit removed Judge Jack Weinstein from a criminal cases involving the then-mandatory Federal Sentencing Guidelines.

Perhaps not surprisingly, reassignment seems to be deeply unpopular among trial judges and their supporters, who understandably view appellate-court ordered reassignment as disrespectful of and unavoidably personal to the trial judge who is ordered off a case, often with no chance to respond. Some trial judges have ignored “suggestions” that they remove themselves from cases, filed unsuccessful petitions for a writ of mandamus with the Supreme Court seeking to overturn reassignment orders, vocally dissented when sitting by designation on appellate court panels that ordered reassignment, or even written or pointedly cited articles decrying the practice.

At least part of the problem with reassignment may lie in how it generally is practiced. As I explain, the Seventh Circuit has ordered by far the largest number of reassignments in both absolute and relative terms, all without appearing to generate the kind of controversy that has accompanied the other circuit’s use of reassignment. One of the reasons for the lack of uproar in the Upper Midwest, I suggest, may be that the Seventh Circuit has normalized reassignment by promulgating a local rule that makes reassignment presumptive in certain cases and permits the court of appeals to order reassignment in other cases without providing case-specific reasons. Each of these steps, I argue, helps reduce the stigma associated with reassignment by presenting it as an expected part of the appellate process for certain cases rather than a sanction reserved for exceptional ones. I also urge courts of appeals judges who are about to order reassignment to consider the timeless advice of Thumper’s father (and my grandmother): “If you can’t say something nice, don’t say nothin’ at all.”

Posted by Rick Garnett on November 19, 2013 at 09:29 AM | Permalink


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The Second Circuit's decision to remove Scheindlin was extremely unusual, not because Judge Scheindlin was removed, but because she was removed while the appeal was still pending and the case was, for all practical purposes, not before her.

Posted by: AF | Nov 20, 2013 10:23:48 AM

Toby, I look forward to reading the article. In a prior life as DOJ lawyer working (among other things) on appeals from the Cobell litigation, we ultimately got Judge Lamberth reassigned and there was plenty of briefing on the subject of reassignment by the Circuit vs. Recusal. I mention it in case you have not looked at this case and (IMHO) very good brief and arguments, including the work of some of the best brief writers i ever worked with (Mark Stern and Peter Keisler)

Posted by: I. Glenn Cohen | Nov 19, 2013 5:00:57 PM

Interesting ruling. Thanks for sharing this one.

Posted by: James Templeton | Nov 19, 2013 3:39:10 PM

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