Issue XCVI

21 OCT 2016



EDITORIAL A Bad Ruling on Stop-and-Frisk


A Bad Ruling on Stop-and-Frisk


The United States Court of Appeals for the Second Circuit was unwise to put a stay on the necessary remedies Judge Shira Scheindlin of Federal District Court in Manhattan ordered in August in response to the civil rights violations of New York City’s stop-and-frisk policy. And it overreached in taking the extraordinary step of removing Judge Scheindlin from the long-running litigation.

The appeals panel said the judge improperly used the assignment process that led to her presiding over three stop-and-frisk cases. It also said that she created the “appearance of impropriety” by granting a series of press interviews while the case was pending before her. In one of the interviews cited in the appellate court order, Judge Scheindlin reasonably defended herself from what she described as “below-the-belt” attacks by the city, which sought to portray her as unfair to the New York Police Department.

The city, however, did not raise these issues in its motion for a stay of the remedial measures, which include an independent monitor who would oversee reforms of police training, discipline and other matters — while the case was on appeal. The appeals court went out of its way to take up issues that were not before it.

The court did not overturn the August ruling, in which Judge Scheindlin rightly found that the tactics underlying the stop-and-frisk program violated the rights of minority citizens. She castigated city officials for being “deliberately indifferent” to police practices that were racially discriminatory.

The case turned on statistics showing that about 4.4 million people — mostly young black and Hispanic men — had been stopped between January 2004 and June 2012. About 12 percent led to arrests or summonses. But 88 percent of those cases resulted in no further action, meaning that those detained or frisked were not breaking the law. As Judge Scheindlin noted in her ruling, the population that was stopped was overwhelming innocent, not criminal — which undercut the city’s argument that it had justification for focusing on minority citizens.

Judge Scheindlin did not strike down the program, which, when properly used, is an important crime-fighting tool. But she sensibly ordered the city to use it in a manner that does not discriminate against minorities and that complied with...

OPINION The slapdown Judge Shira deserved


would come as no surprise to anyone familiar with the jurisprudence of federal Judge Shira Scheindlin that the Second Circuit Court of Appeals would stay her ruling against New York City in the landmark stop-and-frisk case and remove her from the case. Over the years she has proven herself to be the quintessential liberal activist judge with an obvious anti-police bias.

The appellate court ruled that Scheindlin “ran afoul” of the judiciary’s code of conduct by showing an “appearance of partiality surrounding the litigation” by steering the lawsuit to her courtroom. The court also found that when city officials complained about Scheindlin’s lack of objectivity, she violated additional ethical rules by embarking on an unprecedented public-relations campaign and granting a series of interviews to media outlets while the case was still pending.

Scheindlin has a history of twisting the facts and the law to reach an ideologically desired result, and there is a strong argument that she followed the same course in the stop-and-frisk litigation: cherry-picking facts, massaging statistics and spinning the law while disregarding reality and legal precedent.

If Scheindlin’s name sounds familiar to people interested in law enforcement, it should. In 2006 she manipulated facts and ignored crystal-clear legal precedents to order a new trial for left-wing revolutionary, Judith Clark, who was convicted of multiple murders in the infamous 1981 Brinks robbery case in Rockland County.

The judge ruled Clark was deprived of her right to be present at trial even though Clark, in the thrall of her revolutionary zeal, refused to recognize the court’s authority and freely chose not to attend her trial.

I personally argued the appeal of Scheindlin’s poorly reasoned ruling before the same Second Circuit Court of Appeals. That court unanimously overruled Scheindlin on every issue it addressed.

In her recent PR tour, when questioned by The New York Law Journal about the Brinks case, Scheindlin admitted that the Second Circuit was correct in its reading of precedents, but that she had ruled the way she did because she “hoped they [the appellate court] would take a fresh look” at the issue. In other words, she ignored the law to advance her ideological agenda.

That’s Scheindlin, and that’s exactly what she did in the stop-and-frisk litigation. Her goal wasn’t just to “reform”...


Sebelius Apologizes for Health Site’s Malfunctions


WASHINGTON — Kathleen Sebelius, the secretary of health and human services, gamely defended the problem-plagued rollout of President Obama’s health care law on Wednesday and tried to explain the cancellation of hundreds of thousands of individual insurance policies.

In three and a half grueling hours of testimony before a House committee, Ms. Sebelius apologized for the missteps and problems in efforts to carry out the president’s most important domestic initiative.

But nothing Ms. Sebelius said at the hearing could overcome the stark message displayed on a large video screen that showed a page “The system is down at the moment. We are experiencing technical difficulties and hope to have them resolved soon. Please try again later.”

That message undercut Ms. Sebelius’s statements that the federal online insurance marketplace was improving every day and would be fully functional and able to accommodate millions of users by Nov. 30 — two weeks before the deadline for buying coverage on Jan. 1.

Ms. Sebelius, testifying under oath before the House Energy and Commerce Committee, said she had told Mr. Obama that “we were ready to go” with the insurance website before it opened on Oct. 1.

“Clearly I was wrong,” she said.

In her testimony, Ms. Sebelius came across as a hapless official, aloof from many operational decisions about the website, which was conceived as a shopping mall for health insurance products.

She said she was as surprised as anyone when the website collapsed on Oct. 1, under pressure from millions of users, and was crippled by technical problems in subsequent days.

“No one anticipated this level of problems,” Ms. Sebelius said. While she was aware of the risks in operating a big new system, she said, “no one indicated that this could possibly go this wrong.”

In hindsight, she said, “we should have anticipated, we should have planned better, we should have tested better.”

Ms. Sebelius told the committee: “Hold me accountable for the debacle. I’m responsible.”

She said she had given “regular reports” to Mr. Obama, and she acknowledged that, as chief executive, he was ultimately “responsible for government programs.”

At the same time, Ms. Sebelius said that a government contractor, Terremark, a subsidiary of Verizon Communications, was responsible for failures that disrupted the...

Sebelius deflects criticism on ObamaCare-tied cancellation notices


Health and Human Services Secretary Kathleen Sebelius on Wednesday deflected charges that the administration misled the American people about being able to keep their health plans under ObamaCare -- claiming that despite thousands of cancellation notices, the White House is keeping its promise. 

Sebelius testified at a House hearing that originally was called to address the glitch-ridden ObamaCare website. Sebelius personally apologized for those failures and told lawmakers: "Hold me accountable for the debacle. I'm responsible." 

Sebelius took the blame for giving the impression that the website was ready for launch before Oct. 1. "I told the president we were ready to go. Clearly, I was wrong," she said. 

But Republicans also used the opportunity to press Sebelius on President Obama's repeated claims that people who like their current health plans can keep them under the new law. Thousands of cancellation notices going out to consumers have sharply challenged that claim. 

"The news seems to get worse by the day," Rep. Fred Upton, R-Mich., chairman of the House Energy and Commerce Committee, said at the start of the hearing before his committee. From the outset, Upton grilled Sebelius on those notices, asking why a change was made allowing certain insurance policies to be ruled ineligible under ObamaCare. 

Sebelius, however, claimed: "There was no change." 

Sebelius laid out a highly nuanced position. 

The secretary denied that Obama had broken his promise and claimed that for the most part, people who had coverage as of March 2010 can keep their current plans -- provided their insurance companies haven't changed them significantly. That wrinkle, however, was rarely explained by Obama before now. 

Though Sebelius and other officials argue that those receiving cancellation notices will be offered better-quality plans, Republicans say it still flies in the face of what the president said over the past several years. 

"Some people like to drive a Ford, not a Ferrari," Rep. Marsha Blackburn, R-Tenn., said. "You're taking away their choice." 

Blackburn asked Sebelius point-blank: "Is [Obama] keeping his promise?" 

"Yes, he is," Sebelius answered. 

Sebelius' appearance is her first before Congress since the troubled launch of the exchange websites on Oct. 1. 

At the start of the hearing, she...


President calls for new approach after shutdown


Washington (CNN)  -- The way business is done in Washington has to change to make a positive difference in the economy, President Barack Obama said Thursday as the federal government reopened for business and discussions began in Congress to reach a longer-term budget deal.

That starts, he said, with taking a balanced approach to a responsible budget. Congress should "cut out things we don't need," "close corporate tax loopholes that don't create jobs," and "free up resources for things that do help the country grow," like research and infrastructure, he said.

The partial government shutdown and standoff over the debt ceiling ended late Wednesday night when Congress voted on a temporary funding bill that also raised the nation's borrowing limit.

The standoff "inflicted completely unnecessary damage (to) our economy," Obama said Thursday morning at the White House. He said it slowed the economy's growth and set back employers' plans to hire. "Just the threat of default ... increased our borrowing costs, which adds to our deficit," he said.

"We'll bounce back from this," he said of what he called the damage to the economy that the impasse caused. "America is the bedrock of the global economy for a reason ... because we keep our word and we (meet) our obligations."

He then called on Congress to pass a budget, approve changes to the nation's immigration laws and pass a farm bill.

Before Obama spoke, federal employees returned to work early Thursday to mini coffee cakes from the Vice President, hugs from colleagues, along with eye-rolls about their "vacation" due to the partial government shutdown.

The workers streamed into government offices in Washington, turned on lights and opened national landmarks such as St. Louis' Gateway Arch that had been closed during the 16-day shutdown.

The protracted brinksmanship flirted with a possible U.S. default before ending when Republicans caved to the insistence of Obama and Democrats that legislation funding the government and raising the federal borrowing limit should be free -- or at least mostly free -- from partisan issues and tactics.

After all the bickering and grandstanding, the billions lost and trust squandered, the result amounted to much ado about nothing.

"I am happy it's ended," Vice President Joe Biden said when he arrived at the Environmental Protection Agency with coffee...

Obama: There Are No Winners Here


President Obama on Thursday scolded a deeply divided Congress for creating a “manufactured” financial crisis that damaged the U.S.’ credibility, then urged Congressional leaders to work together on fiscal policy that supports economic growth.

“Nothing has done more damage to the U.S.’ credibility,” the president said, “than the spectacle” of the “self-inflicted” budget stalemate that paralyzed the government for more than two weeks.

Earlier Thursday, the president signed into law a bill that reopened portions of the government shutdown since Oct. 1 and staved off a potential default by the U.S. The bitterly-debated bill temporarily funds the government through Jan. 15 and suspends the debt limit through Feb. 7.

“Let’s be clear, there are no winners here,” Obama said in a speech to the American public early Thursday afternoon from the State Dining Room in the White House.

Obama said the economic implications of the most recent budget standoff are broadly negative, and that even the threat of default could make it more expensive for the U.S. to borrow in the future, a situation that runs counter to the reason many Republican lawmakers opposed raising the debt ceiling in the first place.

An influential group of conservative Republicans refused to sign off on a spending bill for fiscal year 2014 unless the bill defunded ObamaCare, the president’s signature health-care reform legislation. That original impasse stoked two weeks of brinkmanship.

The bill passed early Thursday left ObamaCare's funding untouched.

Obama said Thursday that the administration’s foreign diplomats have told him the U.S. standing has been hurt abroad by the repeated fiscal crises brought about by a divided Congress.

The president also cited ratings firm Fitch Ratings justification – the “repeated brinksmanship” of U.S. fiscal policy makers --for threatening to cut the U.S.’ credit rating earlier this week. “How business is done in this town has to change,” Obama said.

“The good news is we’ll bounce back from this,” the president said.

The rest of the world still looks to the U.S. as the safest and most reliable place to invest, he said. “We keep our word and meet our obligations. The full faith and credit of the United State remains unquestioned.”

The U.S. on Wednesday was hours away from a deadline set by the Treasury...