Reviewing the Monday debate, there was one dust-up between moderator Lester Holt and candidate Donald Trump that is worth a little analysis: the exchange about New York City’s “stop and frisk” policy and practice.
First, there has been a fair amount of post-debate commentary about whether Mr. Holt’s comment, couched as a factual correction, was actually an improper intrusion by a purportedly neutral moderator. He said: “stop and frisk was ruled unconstitutional in New York” — as if it were off the table for political discussion, a priori, on constitutional grounds. Was Mr. Holt correct?
To answer that question one must look both at (1) what court ruled on New York’s policy and practice, and (2) what the court held.
On (1), the court that ruled against NYC was the federal District Court for the Southern District of New York. The opinions of that court, because of the general influence of New York City and because of the quality of the lawyers who present cases there, are sometimes regarded as particularly persuasive authorities among the decisions of federal District Courts. That said, no other District Court is required to follow its decisions: they may do so, or not, in accordance with how persuaded they are by its reasoning. It is not as if the Supreme Court of the United States — whose constitutional decisions all courts follow whether they agree with the Court’s reasoning or not — had made the ruling.
Regarding (2), the District Court did not rule “stop and frisk” unconstitutional on its face. (Indeed it could not, unless it wanted to defy the Supreme Court’s decision in Terry v. Ohio.) Here is how the Court described its own ruling:
To be very clear: I am not ordering an end to the practice of stop and frisk. The purpose of the remedies addressed in this Opinion is to ensure that the practice is carried out in a manner that protects the rights and liberties of all New Yorkers, while still providing much needed police protection.
Floyd v. City of New York, No. 1:08-CV-01034-SAS, slip op. — remedies at 2 (S.D.N.Y. Aug. 12, 2013) (emphasis in original).
In consideration of the identity of the Court and the content of its ruling, then, it’s fair to say that Mr. Holt overstepped his moderating duties by implying that the Donald’s praise of “stop and frisk” policies was outside constitutional bounds. Point to Trump and his apologists.
Of course, Mr. Holt’s comment wasn’t the end of the discussion — so that isn’t the end of the analysis.
Candidate Trump went on to say, not that the Southern District of New York’s ruling in Floyd wasn’t controlling authority nationwide, nor that Floyd didn’t end NYC’s “stop and frisk” practices but only regulated them, but that the decision was illegitimate because an “against-police judge” made it. It’s a vintage Trumpian argument, and it is awful for several reasons. To state three:
First, it reveals that Mr. Trump weighs the value of constitutional decisions of judges, not according to the facts of the case nor the quality of the legal reasoning, but according to the person or class of persons against whom the judge rules. Dismissing a judge as “against police” because that judge held that NYC must reform its police practices to comply with the Fourth and Fourteenth Amendments is playing identity politics against judicial process and constitutional rights. Such a process of evaluation ends with a nakedly political judiciary, not with “a government of laws and not of men.”
Second, the actual quality of Judge Scheindlin’s opinion in Floyd is pretty darn high. The judge’s factfinding is careful and extensive (the trial lasted nine weeks); she bases her rulings on agreed facts to the greatest possible extent; and her conclusions of law and remedies are carefully drawn.
Third, police practices that don’t comply with the Fourth and Fourteenth Amendments are standing provocations: to all persons subjected to unreasonable searches based on flimsy, pretextual justifications (what counts as a “furtive movement” or “suspicious bulge”?); and especially to racial minorities subjected to such searches at higher rates. The moral ground of the Fourth Amendment — natural human hatred of unwarranted suspicion and intrusion — is timeless and universal. The moral ground of the Equal Protection Clause — that a person’s ethnic identity or pigmentation cannot justify differential treatment by government authorities — is likewise timeless and universal, and the sad racial history that made that Clause particularly necessary in the United States is still relevant today. To flaunt either Constitutional provision is to court, at least, widespread unrest, and at the extreme end revolution.
Remember the words of Justice Frankfurter:
It makes all the difference in the world whether one recognizes the central fact about the Fourth Amendment, namely, that it was a safeguard against recurrence of abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution . . .
United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting).
The pattern of this exchange is typical of the 2016 election. The purported refs clearly are playing for one team. But the replies from the candidate on the short end of the refs’ favoritism reveal that he really is playing out of bounds.