Courtroom sketch of Judge Shira Scheindlin. (AP Photo/Elizabeth Williams)
A decision is imminent in New York’s historic stop-and-frisk case, tried for two months in a Manhattan federal courtroom. The judge will either permit present practices to continue, or order reform. Perhaps most controversial, if she decides that there is a systemic pattern or unconstitutional conduct, she has the power to put in place a monitor to oversee the New York Police Department, a prospect endorsed by the Obama administration, but decidedly opposed by the city defendants.
From the start of Floyd v. City of New York, the mayor’s office has attempted to discredit the assigned judge, Shira Scheindlin, claiming that she regularly rules against the police, since she has decided against them in other stop-and-frisk cases. The city has prepared—and the tabloids have embraced—a report on her that ignores the search-based cases she has decided in favor of the police.
This will not intimidate Judge Scheindlin, although it sets the groundwork for appeal if the plaintiffs prevail. But what if, instead of accusing Scheindlin of bias, New York’s mayor, his counsel and the local tabloids recognize that along with her experience, judicial demeanor and insistent knowledge of the constitution, she brings a valuable quality to the bench: the ability and willingness to feel what others are feeling—in a word: empathy?
President Obama once invoked empathy when describing judicial excellence, prior to nominating for the Supreme Court Scheindlin’s former colleague, a Bronx-born, Puerto Rican woman, Sonia Sotomayor. “I view that quality of empathy of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes,” the president said. In protest, one senator declared that “empathy and judicial decision-making can and should be mutually exclusive.” The concept was further belittled by Michael Steele, then chairman of the Republican National Committee, who scoffed, “Crazy nonsense, empathy. I’ll give you empathy right on your behind.”
The Bloomberg administration never wanted Judge Scheindlin to preside over Floyd. In its view, her history of finding that certain NYPD street practices violated the rights of individuals—usually young black or Latino men—means she can only be biased and that this bias will lead her to rule against the police. But Scheindlin will never abandon the Constitution, even as she views the evidence in a way that leads her to do what she considers “the right thing.” As she has said, she wants to be creative in applying the law.
The two Michaels (Bloomberg and Cardozo, his counsel) would prefer to handpick the judges who preside over cases they are litigating, as they have sometimes been allowed to do—particularly in state courts, where the independence of the judiciary is not always as tidy as the separation of powers would dictate. The City’s preparation of a dossier on Judge Scheindlin was not to better prepare for trial, but an effort to get the case away from her, or, however, improbable, to intimidate her. But a highly respected federal judge, filling a lifetime appointment, is not likely to step down simply because some city officials don’t like her rulings. This is especially true of a judge who emphatically believes in the law, judicial independence and the quaint concept of “justice for all.”