Sen. Cornyn's Daily Question for Judge Sotomayor - Question 11

Statement

Sen. Cornyn's Daily Question for Judge Sotomayor - Question 11

How should courts measure the Government's need to protect the public safety against the threat of terrorism?

Explanation: The Fourth Amendment prohibits unreasonable searches and seizures. In the context of the War on Terror, courts assess what searches and seizures are reasonable by balancing the significance of the government's need to protect public safety against the significance of the intrusion on privacy interests. How a judge chooses to evaluate the significance of the government's interest in protecting the public safety provides significant insights into their views of the proper role of courts in the War on Terror.

In Cassidy v. Chertoff, 471 F.3d 67 (2d Cir. 2006), Judge Sotomayor authored an opinion on whether a policy of searching the baggage and vehicles of randomly selected passengers traveling on ferries in upstate New York violated the Fourth Amendment. In that opinion, Judge Sotomayor assessed the strength of the government's needs in a very curious way. The opinion appears to approach the question as a matter of administrative law, which is the area of law that governs review of regulatory conduct such as rate-setting and administrative action. The opinion reasoned that the search policy was part of the zone of delegated discretion that Congress had delegated to the Coast Guard, and as a result that the significance of the Government's interest was entitled to deference.

In my view, this analysis was erroneous. The Government's interest in fighting terrorism is great because of the importance of the terrorist threat, not because of technical distinctions of administrative law. I hope Judge Sotomayor agrees that the threat of terrorism triggers a strong government interest regardless of these technical distinctions.

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