Judging Kerry

In the second debate, John Kerry described the type of judge he would nominate to the Supreme Court:

I don't believe we need a good conservative judge, and I don't believe we need a good liberal judge. I don't believe we need a good judge of that kind of definition on either side. . .

The future of things that matter to you -- in terms of civil rights, what kind of Justice Department you'll have, whether we'll enforce the law. Will we have equal opportunity? Will women's rights be protected? Will we have equal pay for women, which is going backwards? Will a woman's right to choose be protected?

These are constitutional rights, and I want to make sure we have judges who interpret the Constitution of the United States according to the law.

Obviously, abortion is Kerry's litmus test. Kerry used to decry litmus tests in judicial selection. So he's flip-flopped, again, to conform to the NOW/feminist line. This likely helps Kerry with his base while forfeiting nothing--few pro-lifers vote Dem.

Apart from abortion, how does Kerry define "enforc[ing] the law" and "interpret[ing] the Constitution of the United States according to the law?" Jurists and scholars debate this constantly. So how, precisely, does Kerry's approach differ from President Bush's promise, responding to the same question, that he "would pick somebody who would not allow their personal opinion to get in the way of the law. I would pick somebody who would strictly interpret the Constitution of the United States?"

To answer this question, I suggest asking both candidates about the recent 11th Circuit decision in Bourgeois v. Peters, No. 02-16886 (11th Cir. Oct. 15, 2004). The court held that a city police requirement that public protesters pass through a metal detector violated the Fourth and First Amendments. In other words, the case created a new constitutional right to evade detection of weapons. The case has been blogged by Professor Kerr at the Volokh Conspiracy, Beldar and Howard Bashman.

The decision is odd for three reasons: First, the holding is grounded on the Constitution's Fourth Amendment (search and seizure) and First Amendment (assembly). The ruling never mentions the Second Amendment right to bear arms. Yet the Bourgeois case effectively establishes a right to carry concealed weapons--a right which, if it exists, logically could derive only from the Second Amendment.

Second, the opinion assumes a mandatory metal detector is a "search" under the Fourth Amendment, possibly because prosecutors never challenged the classification. Still, Beldar questions the failure to establish the point:

I'd expect to see that critical foundation for all the panel opinion's subsequent analysis to be firmly nailed down, whether raised by the parties in their briefing or not.

Beldar's right. I'm not aware of any binding precedent establishing a metal detector is a search. See Bell v. Wolfish, 441 U.S. 520, 559 n.40 (1979). Indeed, three liberal Justices (Brennan, Marshall and Stevens, the latter of whom is still on the Court) suggested otherwise, dissenting in Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 473-74 (1990):

It is, for example, common practice to require every prospective airline passenger, or every visitor to a public building, to pass through a metal detector that will reveal the presence of a firearm or an explosive. Permanent, non discretionary checkpoints could be used to control serious dangers at other publicly operated facilities. Because concealed weapons obviously represent one such substantial threat to public safety, I would suppose that all subway passengers could be required to pass through metal detectors, so long as the detectors were permanent and every passenger was subjected to the same search.

Third, as Professor Kerr says, the "opinion is particularly notable for its rebuke of the city's effort to justify use of the metal detector based on 9/11." Calling reliance the war against terrorism "ill-advised and groundless," the court said (Slip Op. at 14):

While the threat of terrorism is omnipresent, we cannot use it as the basis for restricting the scope of the Fourth Amendment's protections in any large gathering of people. In the absence of some reason to believe that international terrorists would target or infiltrate this protest, there is no basis for using September 11 as an excuse for searching the protestors.

This ruling transforms Federal judges into ostriches. Terrorism is real, and a grave threat. And the ruling might be sufficiently broad to preclude airport metal detectors. Beldar's right again: the 11th Circuit decision "protects your right to be blown to hell and back by terrorists."

So the Bourgeois ruling is dubious. In fact, the panel seemingly concurs with Senator Kerry's downgrade of terrorism to merely a "nuisance." Which makes the case appropriate to the campaign. I suggest two questions for the candidates:

1. Is the Bourgeois decision "according to the law?"



2. Would you nominate a judge who agrees with Bourgeois that there's a Constitutional right to evade metal detectors?

How would John "nuance" Kerry respond? No "yes" is acceptable.

More:

An interesting chart showing how a voter's view on abortion translates into support for one or the other party.