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A Stop-and-Frisk Ruling All Sides Can Cheer

Whatever one thinks of the NYPD policy known as stop and frisk, yesterday’s appeals court ruling was a welcome act of judicial restraint. In August, Judge Shira Scheindlin ruled against stop and frisk’s constitutionality on flimsy arguments after conducting an irresponsible and transparent show trial against the New York Police Department. Yesterday, the Second Circuit appeals court granted a stay of the ruling and Scheindlin’s proposed changes to the policing policy.

But the appeals court went further, reprimanding Scheindlin’s behavior and ordering her to be removed from the case:

Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges … and that the appearance of partiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s “related case rule,” … and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.

What Scheindlin had done was improperly steer the case to her court so she could control the outcome, having telegraphed ahead of time that she wanted to put a stop to the tactic. The case that followed undermined her intentions, because the reality of stop and frisk is so far removed from the left-wing demagogues’ fantasy slander of the police. Scheindlin ruled against the evidence anyway, because she had come to her decision beforehand.

Because I have defended the policing tactic at the center of this–it has been found constitutional by the Supreme Court because it is constitutional, and it has saved countless lives, especially among minority communities–it would be easy to dismiss this as championing judicial restraint simply to save a policy of which I approve. But the truth is that this ruling is far better for the anti-stop and frisk crowd than Scheindlin’s ruling was.

The reason for that is simple: although Ray Kelly and the NYPD get high approval marks, on Tuesday in all likelihood Bill de Blasio will be elected mayor. De Blasio is an inexperienced ideologue (he was inspired to government service by his time spent with Marxist Sandinistas and honeymooned in Cuba), and as such has openly campaigned against responsible public servants like Kelly and the NYPD. Opponents of stop and frisk saw the momentum moving their way, after twenty years of Giuliani-Bloomberg public safety campaigns.

And just as de Blasio’s son Dante had become the public face of the de Blasio campaign, lending even more credence to de Blasio’s claim to understand the impact of city policing on the African-American community, Scheindlin swooped in and made the case all about her. A mayor who promised to end stop and frisk that was elected in a landslide lends a heavy dose of democratic legitimacy to his policing policies. An activist judge who steers a case to her courtroom and then has to be removed from the case because of her inappropriate behavior does the opposite.

This discussion takes place on a host of controversial issues. One argument against a broad Supreme Court ruling in favor of gay marriage, for example, was that the country is making its peace with same-sex marriage and elected state legislatures are already enacting marriage-equality legislation. A court ruling imposing social rules on the country risks removing that democratic legitimacy and thus polarizing the two sides far more, as happened with Roe v. Wade, an example of judicial overreach that has ensured the matter would not be settled by democratic means.

This line of argument was that the cause of gay-marriage legalization had the most to benefit from the court staying out of the way of popular change, especially because it seemed so unnecessary. The same can be said for stop and frisk’s opponents. They are on the verge of electing their champion. Additionally, Scheindlin’s ruling was of course going to be appealed, thus freezing the process. It’s entirely possible that Scheindlin’s ruling would have ended up delaying changes to stop and frisk, while also stripping away the legitimacy of those changes.

This is why judicial restraint is so important in a democracy, and why those on both sides of stop and frisk should cheer the Second Circuit’s infusion of propriety into the case.



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