Contributor Post Created with Sketch. In Defense of Judge Posner

 

Unlike some legal commentators on both the left and the right, I have no serious problems with Judge Richard Posner’s recent confession that he believes he erred in his decision upholding Indiana’s voter ID law.

First, judges get things wrong all the time. That is why we have dissents and concurrences, appeals courts, and a respect for precedent (stare decisis), but not permanently binding precedent. It is refreshing to see a judge has the intellectual confidence to admit when he is wrong. It would be good for more judges to admit that they are uncertain about a decision.

Second, Judge Posner in particular should be more open about being wrong because of his unique theory of judging. Posner does not adhere to either the living Constitution or original meaning. Rather, he believes in pragmatism of a law & economics variety. He thinks that judges should reach decisions with an eye to the consequences, and that judges should strive to render decisions that increase social welfare—in other words, decisions where the benefits outweigh the costs.

By his own standards, Judge Posner can be wrong in an individual decision if the consequences turn out to be different than he anticipated or if he balances the costs and benefits differently. Here, Posner has confessed error because he believes that his court did not become fully aware of all of the costs associated with upholding voter ID.

Third, there is some suggestion (such as this, by Charles Lane in the Washington Post) that Judge Posner has violated the canon of judicial ethics by speaking on a public policy issue. Of course, as anyone who has read his non-judicial writings knows, Judge Posner stepped over that line long ago. He is unique in his willingness to write and speak on all manner of issues. We should encourage that trait rather than losing a scholar with many contributions to make just because he joins the bench.

I’ve long thought that this judicial ethics rule is a violation of the right of free speech. Instead of forbidding judges from speaking, the proper rule would be that judges who do speak or write on public policy issues should recuse themselves from cases on that subject. The whole point of the rule is to guarantee parties an unbiased bench. Modifying the rule that way would do as good job or better of reaching that end.

There are 11 comments.

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  1. J.Maestro Inactive

    That was the most rousing back-handed defense I’ve ever read.

    “Whaddya expect from a judge who thinks he’s Plato’s philosopher king? Dispense with ethics rules? Big deal. The dude already dispensed with the Constitution!”

    • #1
    • October 24, 2013, at 1:06 AM PDT
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  2. KC Mulville Inactive
    John Yoo

    Instead of forbidding judges from speaking, the proper rule would be that judges who do speak or write on public policy issues should recuse themselves from cases on that subject. The whole point of the rule is to guarantee parties an unbiased bench. 

    With respect, I disagree. I don’t think he needs to recuse himself, either.

    Speech is an expression of what the judge believes. The fact that he does not express his beliefs doesn’t mean he doesn’t hold them. His bias is there whether he expresses it or not, and the fact that he doesn’t express a bias is no proof that he doesn’t have one. 

    A judge is tasked to determine two dimensions of a case: the events as we can prove them, and how the law applies to those events. A judge who writes on public policy issues should be perfectly free to discuss how the law should be … so long as when he is required to judge, he sticks to what the law actually is, whether he agrees with it or not. 

    • #2
    • October 24, 2013, at 1:26 AM PDT
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  3. Dave Carter Podcaster

    The judge’s pragmatic, as opposed to Constitutional, approach at some point necessarily puts him in conflict with his oath of office, does it not? Are there remedies to a waywardness so blatant that it gets it’s own name, or does it just suck to be a citizen subject to Judge Posner’s whims?

    • #3
    • October 24, 2013, at 1:32 AM PDT
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  4. Mendel Member
    MendelJoined in the first year of Ricochet Ricochet Charter Member

    Let me echo Spin’s question: how is it meaningfully different for a judge to have an opinion in his head, or to put it on paper? It’s not as though his own writing process is unduly influencing his thinking process.

    Obviously, when a judge has previously made his opinion on a topic clear, it drastically changes the calculus going into a trial. But if anything, shouldn’t that be a benefit to the litigants?

    If I were an attorney I would much rather know explicitly that my judge views my position skeptically, and why, than have him keep that knowledge to himself.

    • #4
    • October 24, 2013, at 1:46 AM PDT
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  5. Mendel Member
    MendelJoined in the first year of Ricochet Ricochet Charter Member
    Dave Carter: The judge’s pragmatic, as opposed to Constitutional, approach at some point necessarily puts him in conflict with his oath of office, does it not? Are there remedies to a waywardness so blatant that it gets it’s own name, or does it just suck to be a citizen subject to Judge Posner’s whims? 

    On the other hand, which is better: a judge who is open about how he reaches decisions, or the (typical liberal) judge who pretends to be guided by the Constitution but in reality follows their gut?

    Besides, if Posner’s approach was known to the President and Senate during his selection process, then the blame lies with our elected officials.

    And by definition, Judge Posner’s approach is constitutional – because as a judge, he gets to decide what’s constitutional and what isn’t! (Until someone above him disagrees, at least…)

    • #5
    • October 24, 2013, at 1:50 AM PDT
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  6. Ontos Inactive

    Posner’s judicial philosophy is absurd. He has been appointed as a Judge and not as a legislator. The Legislature passed a law. The Judge’s job is to determine if it is constitutional or not. What Posner said is doubly wrong. First, it is a canard to say that people are disenfranchised by voter ID. Posner cannot be that naive so he is willfully trying to flatter the left. Secondly, it s the Legislature’s job to decide whether the law they passed was wise and what is wanted by the people they represent. Posner’s philosophy claims that his job is to do a cost benefit analysis! Sorry , not his job. It is not a violation of equal protection or biased against a protected group to require of all voters that they establish wh othey are before they vote.

    The reason for the law is that the Democrat party massively cheats at elections by shifting people around and voting with the names of people they know are dead or moved away. This is known by anyone familiar with the practice. These people vote multiple times throughout the day. Democrats want to prevent voter ID laws to do this. 

    • #6
    • October 24, 2013, at 1:56 AM PDT
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  7. Salvatore Padula Inactive
    Ontos: Posner’s judicial philosophy is absurd. He has been appointed as a Judge and not as a legislator.

     

    Justice Holmes famously described judges as “interstitial legislators.” I’m reluctant to wade into this larger debate, but it’s worth noting that Posner’s jurisprudence is not without precedence. His book How Judges Think is something that all lawyers (and probably most people) should read.

    • #7
    • October 24, 2013, at 2:29 AM PDT
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  8. Instugator Thatcher
    InstugatorJoined in the first year of Ricochet Ricochet Charter Member
    John Yoo

    First, judges get things wrong all the time. That is why we have dissents and concurrences, appeals courts, and a respect for precedent (stare decisis), but not permanently binding precedent. 

    Just precedent that takes so long to overturn it might as well be permanently binding.

    By the way, they still haven’t built the development for which Susette Kelo was compelled to give her home.

    • #8
    • October 24, 2013, at 5:05 AM PDT
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  9. Amy Schley, Longcat Shrinker Moderator
    Ontos: Posner’s judicial philosophy is absurd. He has been appointed as a Judge and not as a legislator. The Legislature passed a law. The Judge’s job is to determine if it is constitutional or not. What Posner said is doubly wrong. First, it is a canard to say that people are disenfranchised by voter ID. Posner cannot be that naive so he is willfully trying to flatter the left. Secondly, it s the Legislature’s job to decide whether the law they passed was wise and what is wanted by the people they represent. Posner’s philosophy claims that his job is to do a cost benefit analysis! Sorry , not his job. It is not a violation of equal protection or biased against a protected group to require of all voters that they establish who they are before they vote.

    You’re thinking Constitutionally, not law-and-econ-ly. The costs of falsified elections are less than the cost of requiring identification, so therefore voter ID laws shouldn’t be legal.

    Posner makes perfect sense, once you stop thinking judges are to use the Constitution to make their decisions.

    • #9
    • October 24, 2013, at 9:30 AM PDT
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  10. Spin Coolidge
    SpinJoined in the first year of Ricochet Ricochet Charter Member

    Here’s a question: if a judge comments or writes on some policy issue, why should they recuse themselves from a court involving that policy decision? Does the act of writing about the issue indicate they are less able to deal with the matter without bias? All judges have some opinion on this issue or that. The fact that they write about it doesn’t seem to me to indicate their unwillingness to be unbiased. Or does it? I’m asking because I’m a n00b when it comes to judicial what-nots.

    • #10
    • October 24, 2013, at 12:59 PM PDT
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