Enter Judge Pamela Harris
Remember when that partisan street fight broke out after Pamela Harris was nominated to the Fourth Circuit by President Obama? David Fontana wrote in The New Republic that “liberals should rally behind” then-nominee Harris because she – “more than any other Obama judicial nominee” (whew!) – would “be a sympathetic vote to liberal causes,” would “give rise to the next generation of liberal legal elites,” and would “be an eloquent and inspiring champion of liberal jurisprudence.” Carrie Severino blisteringly responded in National Review that the Senate “should be deeply skeptical of her ability to put the law ahead of her political views,” and National Review did multiple pieces attacking her candidacy. The questioning at her confirmation hearing tracked this line of attack. Confirmed with 50 votes (no filibuster after Harry Reid triggered the nuclear option), Judge Harris fortified Obama’s transformation of the Fourth Circuit.
A few years have passed – and were the commentators right? Is she a liberal lion and a conservative’s worst nightmare?
The answer is that it’s a lot more complicated than that, and the best proof is Judge Harris’s dissent from this month’s controversial Fourth Circuit en banc opinion in United States v. Robinson. Already getting Supreme Court buzz, Robinson calls up all of the controversial issues of the moment – race, policing, gun rights and the Second Amendment, stop-and-frisk, mass shootings, and the resurgence of the Nixonian “law and order” approach to criminal justice. Because this is the first case in which Judge Harris has taken a leading voice in a big and politically hot constitutional case, now is a good time to reflect on the case and what it tells us about Judge Harris.
The most important fact of the Robinson case is that carrying a concealed gun in public is generally legal in West Virginia (and plenty of other states). Despite its presumed legality, an anonymous caller told police that he witnessed Shaquille Montel Robinson, a black man, load a gun and put it in his pocket while he was in a 7-Eleven parking lot in Ranson, West Virginia – a hot spot for drug trafficking. Robinson had been sitting in a “bluish greenish” Toyota Camry. Acting on this information, West Virginia police officers followed a car that matched the description and pulled it over for (wait for it) a seatbelt violation. The officers quickly asked Robinson if he had a firearm on him; Robinson did not give a verbal response and instead gave what the officer described as an “oh, crap look.” The officers frisked Robinson and found the gun. One of the officers then remembered that Robinson was a convicted felon. Convicted felons can’t carry guns. See 18 U.S.C. § 922(g)(1). The officers arrested Robinson.
Robinson moved to suppress the gun, arguing that the officers had no basis to frisk him because they did not have reasonable suspicion to believe that he was armed and dangerous, Terry v. Ohio, 392 U.S. 1, 27 (1968), only armed. The district court denied the motion, rejecting the magistrate judge’s recommendation that it be granted.
Sitting en banc, the Fourth Circuit affirmed. Judge Niemeyer wrote for the 11-member majority that a police officer may frisk a lawfully-stopped individual whom he has reason to believe is armed because “[t]he danger justifying a protective frisk arises from the combination of a forced police encounter and the presence of a weapon, not from any illegality of the weapon’s possession.” Slip Op. at 5 (emphasis added). In simple terms: for purposes of the Fourth Amendment, it does not matter that carrying concealed guns in public in West Virginia is generally legal; guns are dangerous, and the suspicion of a gun plus a lawful traffic stop is sufficiently dangerous to trigger a frisk under Terry.
Judge Harris’ dissent, joined by Chief Judge Gregory, Judge Motz, and Judge Davis, makes two particularly important points that give us some insight into her jurisprudence.
First, citing District of Columbia v. Heller and McDonald v. City of Chicago, she writes that the majority wholly ignores the Supreme Court’s Second Amendment jurisprudence and the ensuing changes in the nation’s tolerance for firearms. “[F]ederal constitutional law has recognized new Second Amendment protections for individual possession of firearms, . . . [and] state law has followed, providing expanded rights to carry guns in public.” Slip Op. at 35–36. In her words, because “it no longer is the case that the public carry of guns is illegal or even unusual,” “courts must take into account that changed circumstance in applying the familiar Terry standard.” Slip Op. at 36. Armed does not mean armed and dangerous: that the law regulating gun possession has changed, and that the country has changed with it, means that the court cannot conflate these two discrete concepts.
That argument gives her some strange allies. David French in (you guessed it) National Review lashed out at Judge Niemeyer’s Robinson opinion as “an outbreak of bad judging” that “legislated from the bench” to authorize authorities to “treat lawful gun owners as toxic[.]” The irony here is so thick it could clog your arteries: National Review blasts a Republican appointee for “legislating from the bench” in a gun rights case, instead preferring the approach taken by an Obama appointee who was the star of a National Review 5-part mini-series viciously attacking her judgeship candidacy. (And French doesn’t even mention Judge Harris – sad!)
Judge Harris’ second problem with the majority opinion – her “biggest concern” – is race. By giving sweeping discretion to police officers to frisk anyone thought of having a gun during a traffic (and perhaps pedestrian) stop, she writes that the majority has invited selective enforcement on the basis of neighborhood, class, ethnicity, and race. Citing Justice Sotomayor’s now-famous dissent in Utah v. Strieff, Judge Harris borrows from the other end of the jurisprudential and political spectrum, giving a nod to another Amendment that the majority opinion has problems with: the Fourteenth.
This all tells us a lot about Judge Harris. Some of it we probably already knew: she is an adept legal mind who knows the doctrine, a crisp writer, measured in tone, and very much comfortable writing on constitutional law (she was a constitutional law professor, after all). But in fusing traditionally conservative and progressive strands of argument, she also shows us that she is no political novice – she’s crafted a dissent that at least facially appeals to all eight justices of the Supreme Court, and it is hard to imagine this tactic wasn’t intentional. We have a close watcher of the Supreme Court, an acute observer of the social and political trends in Washington and around the country, and an Obama appointee who can champion the Second Amendment just as easily as she can the Fourth and the Fourteenth. Above all, Robinson shows that she won’t fit neatly into any political boxes, and that conservatives may actually find in her an ally – on at least some of their pet issues.
 Judge Wynn authored a concurrence joined by no other judge, writing that he would hold “that individuals who choose to carry firearms necessarily face greater restriction on their concurrent exercise of other constitutional rights,” like their First and Fourth Amendment rights. Slip Op. at 31. Such a holding would necessarily acknowledge that the Second Amendment is not as broad as its most fervent defenders want it to be, “and therefore does not amount to ‘a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’” Slip Op. at 32 (quoting Heller).
My various values (political, social and judicial) are largely and moderately left of center. That said, I hardly think Judge Harris’s dissent reflects moderation (not, again, that I care) and jurisprudential honesty. I think it may eventually prove to be a case of hoisting herself on her petard, in order to score a hit on the en banc majority. Her reliance on McDonald and Heller to bolster her position gives credence to two decisions that now stand in the way unnecessarily of reasonable gun regulation. Nor should those decisions be understood as reflecting a public that has become more accustomed to and accepting of the carrying of concealed weapons. I suspect the figures are quite the opposite and not reflected by a Supreme Court whose composition resulted in nonoriginalist constructions of the Constitution, despite pretensions to originalism. Whatever other aspects of Judge Harris’s record may reveal of her intellectual integrity, Robinson says little. Bear in mind, too, that the good judge reached an arguably liberal result, regardless of the conservative path she took to it, and probably could have reached that result without invoking Heller or McDonald.
— A Slow Day at the Office