Dec 1, 2013

Book Review: Richard Posner's Path Not Taken

Richard Posner's Reflections on Judging
(Harvard University Press. 2013)
Richard Posner's book Reflections on Judging (Harvard University Press. 2013) is an apologist account of his years on the bench.

The scholar turned judge wants to think that he has been a thoughtful and prudent jurist but on major occasions that he had the opportunity to be on the right side of history, he balked.

The depersonalization, the dehumanization, of the citizens by the court has been furthered under his judgeship. And he doesn't even seem to realize it on reflection.

Richard Posner is one of some 187 federal appellate judges.

He was appointed to the Court of Appeals for the Seventh Circuit by Ronald Reagan in 1981 and still serves today.

Appointed along with John Shabaz (District Court, Western District of Wisconsin) and a host of ideological nominees to the federal judiciary by Reagan, Posner's assumption to the bench came during the first fruit bore by the Federalist Society, GOP Party hacks like Shabaz, and the U.S. Department of Justice that became a breeding ground for those seeing the judiciary as a means to power ... period, right-wing judicial activists. Witness Chief Justice John Roberts.

Posner skated around Reagan's fronting for the hard right, maybe out of loyalty.

The difference between Shabaz, a genuine misanthropist, and Posner is the difference between open contempt and indifference toward fellow citizens.

Richard A. Posner takes judicial policy making seriously, but reading Reflections on Judging, while aware of Posner's intellect is an exercise in disgust.

There are less thoughtful approaches to American jurisprudence in our society today; there are malicious approaches evolving in unpredictable ways, yielding results threatening the foundation of America, the expansive liberties of her citizens.

Posner seems unmindful as a judge, and amicable and generous as an author.

Posner attempts to explain to the lay reader some elements of appellate jurisprudence, what makes opinion writing a useful enterprise, and deserves praise for the result. I mean how many citizens concern themselves with what the judiciary does, at least since the grassroots movement against Robert Bork in 1987.

In reading Posner one wonders if he is unaware of the injury jurisprudence can inflict unto the human beings constituting the citizenry of the U.S.

It's easy to understand why Posner cites Robert H. Jackson and Louis Brandeis as jurists and intellectuals in history whom he admires. Less easy to explain why Posner never acted with the same thoughtful manner. Reflections is no help here.

But Posner was never a civil libertarian; he essentially did nothing for social justice in life and as an academic, so it's no surprise in reading Reflections that Posner labored over his work as a judge, mindful that that the law serves entities in this country—human beings—while reaching results that are both appalling and illogical.

Posner advocates the approach of  "legal realism" in judging both at the appellate and trial level.

In Reflections on Judging, Posner explains why "legal formalism," "originalism," "textual originalism," and other given names for fallacious approaches to judging, as epitomized by Justice Antonin Scalia, are "gotcha jurisprudence," (p. 182) and not dispassionate, penetrating examinations of the law.

Posner explains in the same paragraph in Reflections.

Justice Scalia is one of the most politically conservative Supreme Court Justices of the modern era—anyone doubting this should read his vitriolic partial dissent in Arizona v. United States—and he is the intellectual leader of the conservative Justices on the current Supreme Court. Yet he claims that his judicial votes are generated by an objective interpretive methodology (the only objective methodology, he claims) and that because it is objective, ideology, including his own fervent ideology, plays no role. Obviously statutory text itself is not inherently liberal or conservative. But textualism is conservative. A legislature is thwarted when a judge refuses to apply its handiwork to an unforeseen situation that is encompassed by the statute's aim but does not make a smooth fit with its text. Ignoring the limitations of foresight, and also that statute is a collective product that may leave many questions of interpretation to be answered by the courts because the enacting legislators didn't agree on the answers, the textual originalist demands that the legislature think through myriad hypothetical scenarios and provide for all of them explicitly rather than rely on courts to be sensible. Textual originalism is 'gotcha' jurisprudence. (p.182)

The jurisprudence of Scalia—dressed up as a quasi-scientific methodology—poses as an epistemological search in which appellate judges committed to originalism occupy an elevated perch, in Scalia's view, and to Posner's scorn.

Scalia poses, regaling in his perception capable of ascertaining the statute, where others refuse to see this dedication.

But Scalia and his statist, superstitious moralism often neglect the American citizen whom Scalia does not take seriously.

Reading Posner's Reflections, sure it's easy to think of Robert Jackson (pp 257-258) and other jurists' concern for the litigant in cases involving civil liberties, the citizen endowed with expansive rights against the state.

In Posner's Seventh Circuit as an example, we have brilliant jurists like Jackson, Diane Wood, Frank Easterbrook and of course Posner.

And the Seventh Circuit has also seen the worst of jurisprudence—for example, Wisconsin's late Judge John Shabaz who terrorized and abused criminal defendants and attorneys during his reign from 1981 to 2009.

In the Robert W. Kastenmeier U.S. Courthouse, federal magistrates often preceded Shabaz' arrival and would presumptively offer a manner of judicial succor, explaining to the courtroom in effect that Judge Shabaz would often bully attorneys and litigants for any or no reason.

Anyone sentient saw in Shabaz' willful, mean-spirited actions a fundamental misunderstanding of what a courtroom is supposed to represent in America, the rule of law as a shield against the cruel tyranny of the power of the state, of the judiciary.

Local Madison, Wisconsin, journalists wrote occasionally about Shabaz' misanthropy in astonishment, as many citizens who had become aware or experienced Shabaz waited and hoped for his retirement or death. This judge was a human repudiation of Article III of the Constitution.

Shabaz is worth mentioning here, not because his opinions were often overturned by the Seventh Circuit [though they were, especially in civil rights cases], rather because Shabaz' aspirations and personal manner are in direct opposition to Posner's.

We are led to believe that Posner is concerned with people, whom the law and the courts ought to serve.

I don't know if Posner knew about this situation in Madison, Wisconsin; I do believe he would have been appalled, but Posner deserves no praise for remaining blind.

Posner's legal realism leads to some consideration of what people are as citizens of the United States, as human beings.

That's a pretty low bar for a judge.

What this country has endowed its citizens with, rights, are the foundation supported by constant affirmation of citizens' humanity. How society lawfully treats human beings, what social scientific evidence demonstrate, and the thought experiments often heard at oral arguments are what could have made Posner a brilliant judge, had he chosen to go that way.

When Posner is not conversant about many topics, it bothers him, or so it is implied in Reflections. Still, Reflections, as edifying a book as it is, reads more like an aspiration of what Posner could have been as jurist, as against his record.

Consider one critical case on which we know Posner has erred badly, to which he admits failure of imagination and empathy, inhumanity, of ability to ascertain.

"I plead guilty to having written the majority opinion (affirmed by the Supreme Court) upholding Indiana's requirement that prospective voters prove their identity with a photo id—a law now widely regarded as a means of voter suppression rather than fraud prevention." (pp. 8485) [Crawford v. Marion County Elections Board (2008) was later disavowed by its author, Justice Stevens, after his retirement.]
The repercussions for protecting voter rights of Americans against the Republican and Tea Party in Crawford are stunning, but Posner offers only a weak rumination about how difficult gathering information can be in the modern world for federal litigation. 

This is not only a cop-out on Posner's part but clearly shows how weak he is on standing up for a citizen's rights in the face of the so-called justice system. The scholar sees so much as impenetrable. 

Posner asserts the complexity brought by advances in technological fields means that subject matter experts often have difficulty making a judge understand the salient issues. Posner, in other journals, has explained that he can't just give up and go home. He has to rule on what is before him.

Judges are, or should be, selected on the basis of their ability to sort through complex issues, so for Posner to argue that an issue before the court is too complex for him to understand is an abdication of the function of the court. Judges have an obligation to study an issue until they understand it. Surely a man of Posner's intellect can accomplish this. Judges have every expert at their disposal, analytical resources, clerks, libraries. Even in this position of privilege, Posner I swear comes across as whining.

Consider human empathy.

Without empathy, an element both Scalia and Posner find irrelevant, the rule of law dissolves as a protector and extension of the citizenry. So, we can understand Crawford in the context as a lack of empathy, as the civil rights movement reminded America voting is part of humanity.

A local Alabama or Mississippi judge hearing a case on a civil rights violation in 1963 could not render an opinion, the racist state power structures made this impossible. The same held true with most of the south, though federal appellate judges as John Minor Wisdom somehow managed to see through the suffocating cloak of racism during this period.

Consider a more contemporary case, Atwater V. Lago Vista (2001), in which a mother and her two young children, three- and five-years old, were pulled over, verbally abused, and arrested in front of gathering witnesses who all confirmed the same story: Young children became traumatized and cried, as their mother was arrested by a vicious police officer for a traffic violation.

"The question is whether the Fourth Amendment forbids a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine. We hold that it does not."
 —The Court 5-4

As for empathy. Justice Souter for the Court: "The arrest and booking were inconvenient and embarrassing to Atwater, but not so extraordinary as to violate the Fourth Amendment."

Inconvenient and embarrassing.

Justice O’Connor, with whom Justice Stevens, Justice Ginsburg, and Justice Breyer join, dissented:

The Fourth Amendment guarantees the right to be free from 'unreasonable searches and seizures.' The Court recognizes that the arrest of Gail Atwater was a 'pointless indignity' that served no discernible state interest, ... and yet holds that her arrest was constitutionally permissible. Because the Court’s position is inconsistent with the explicit guarantee of the Fourth Amendment, I dissent. ... The Court neglects the Fourth Amendment’s express command in the name of administrative ease. In so doing, it cloaks the pointless indignity that Gail Atwater suffered with the mantle of reasonableness. 
Posner would agree with Souter in this embarrassing case.

People really don't matter all that much, and we just cannot know so much about people under the law.

Posner is no Jackson or Brandeis; he could be but he simply does not allow himself to rise to the occasion.

Keeping his eye on the the prize, human beings with liberties guaranteed throughout the Constitution, makes the non-essential fall away.

I recommend Reflections as thoughtful admissions of failure.

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