Making of a Murderer Appellate Decision Shows American Police State at Work

Image -Kathe Kollwitz, (1867-1945). Kollwitz is a major
anti-fascist artist who lived in Germany.

Update: Judges David Hamilton, Frank Easterbrook, Michael Kanne and Diane Sykes of the Seventh Circuit are dishonest people. Hamilton in his rush to reverse the federal court decision that would have freed Brendan Dassey confused Bobby Dassey with his older brother, Brendan Dassey. JFC. Critical reading.
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When Richard Posner announced his resignation from the Court of Appeals for the Seventh Circuit in September 2017, it was clear real people would get hurt in his absence from the bench.

Posner blew the whistle on the federal judiciary, telling Adam Liptak in the New York Times that judges are not-so-judicious and often vicious: "there are others who are just, you know, reactionary beasts. They’re reactionary beasts because they want to manipulate the statutes and the Constitution in their own way," said Posner.

Posner had people like the innocent-and-convicted-anyway Brendan Dassey in mind.

Dassey was railroaded by east-central Wisconsin human garbage and convicted of crimes of which the cops knew Dassey to be innocent. The case drew outrage after it was featured in Making of a Murderer.

The conviction was reversed this year in federal court. Now, reactionary beasts on the Seventh Circuit reinstated the conviction in (16-3397), Dassey v. Dittman last week.

There is almost never accountability for the inhumane infliction against the innocent. Police and prosecutors remain immune to virtually any crime they inflict.

In Dassey v. Dittman, Judges David Hamilton, Frank Easterbrook, Michael Kanne and Diane Sykes of the Seventh Circuit are reactionary beasts, dishonestly and indifferently snuffing out an innocent, young life.

I wish Posner had been around for just a few months more.

Writes James Warren:

It's ironic — maybe tragic — that Richard Posner, generally conceded to be perhaps the most influential judge-academic of his generation and the most influential judge not on the Supreme Court, suddenly and surprisingly quit the Chicago appeals court and retired in September at a still prolific 78. If he were around, the odds are that he would have voted with the dissenters, made it 4-4 and thus affirmed the earlier reversal of Dassey's conviction.

But no. Dassey will remain in prison, it would appear, until he dies. It might prompt you to download the Netflix series. And, as you watch, be reminded of the strengths of journalism — but how even the most meticulously detailed conclusions can lead ultimately to exasperation, not satisfaction, and precious little attention. 

So, an innocent life is extinguished, Dassey is gone, unless the United States Supreme Court accepts his case when it's appealed.

Exasperation, disgust, and revulsion are features thinking people note in examining the United States criminal justice system. These are not emotions in this context, they're a formless creature of malice and indifference that is the American criminal justice system that exudes what it inflicts.

Whether the victim is Penny Brummer, or Brendan Dassey, the perpetrators are cops and prosecutors, and we are mostly by-standers.

Book Review: The Federal Prosecutor, An American Horror Story

Licensed to Lie by former Assistant
United States Attorney and Chief of
of the Appellate Section for the
Western and Northern Districts of Texas,
U.S. Department of Justice

At no time in modern American legal history has this book been needed as urgently.

"Overcriminalization is a dangerous trend that should alarm everyone. With over 4,450 crimes scattered throughout the federal code, and hundreds of thousands more hidden in federal regulations, “doing the right thing” just isn’t enough to keep you on the right side of the law. Every day people can become overcriminalization victims in a heartbeat and the consequences can be devastating," notes the National Association of Criminal Defense Lawyers.

In Sidney Powell's Licensed to Lie: Exposing Corruption in the Department of Justice (Brown Books Publishing Group, 2014) the villain is the United States Department of Justice and a host of federal judges.

In tales rivaling legal thrillers by John Grisham, Ms. Powell cogently lays out stories of death, and corruption plaguing the DoJ in this non-fiction account of the betrayal of America.

The stories are familiar to us as recent history—the Enron collapse and the wrongful prosecution of a beloved U.S. Senator—but what we think we know is turned on its head.

With this work, the former federal prosecutor and appellate attorney Ms. Powell stands among the great whistleblowers in modern American history as she exposes the injustices and inhumanities perpetrated by the self-aggrandizing members of two federal DoJ Task Forces, who had a license to lie and destroy innocent lives.

Many jurists already know of Sidney Powell's brilliance and dedication, and Licensed to Lie should be required reading for every high school political science class, every undergraduate college constitutional law class and is a must-read for any American with a passing interest in freedom.

No one reading this work—with a jaw-dropping foreword written by Judge Alex Kozinski, Chief Judge, U.S. Court of Appeals for the Ninth Circuit—can do so without being appalled.

Ms. Powell working in various capacities in defense of the innocent faced down prosecutors acting as a veritable Star Chamber in some instances, aided by an oppressive judiciary, unyielding and obtuse.

Powell names the names, and tells the facts, and nothing in the U.S. Department of Justice (DoJ) ought to be the same after this story is told of criminal justice as an American horror story.

Lawful duties of federal prosecutors such as the disclosure of exculpatory information to the defense (the Brady Rule), were abandoned in the quest to secure criminal convictions of innocent people.

In roughly the same timeframe as the Enron Task Force, DoJ prosecutors from the Public Integrity Section (PIN) of Main Justice targeted U.S. Senator Ted Stevens (R-Alaska; 1968-2009) in a prosecution so contrived, the presiding federal judge, Emmet Sullivan, ordered a special prosecutor empaneled to investigate the prosecution.

The DoJ PIN in this period operated an ongoing investigation into alleged public corruption in Alaska, nicknamed Polar PEN, begun in 2004.

Sidney Powell chronicles the criminal prosecutions and miscarriage of justice committed by Polar PEN, resulting in at least one suicide, the unlawful and wrongful 2008 conviction (later set aside at the request of Attorney General Eric Holder in 2009) of World War II hero and Senator Ted Stevens in a repulsive tableau of prosecutorial misconduct.

"I wondered how much the Enron Task Force had collaborated with the Polar Pen prosecutors and  who had concocted all of these overly creative cases without crimes as bogus 'honest services' allegations. The prosecutors had obviously cross-pollinated to produce baseless crimes and tortured law in both major investigations. The Enron Task Force cabal had about a two-year head start on Polar PEN, but the investigators and prosecutions overlapped for several years," writes Powell. (pp. 238-239)

Similar cases of prosecutorial torture of federal statute occurred in the contemporaneous U.S. Attorneys scandal as the creative employment of the Honest Services statute was used by unscrupulous U.S. attorneys such as Steven Biskupic.

Honest services. This is an ironic statute used by prosecutors who have no conception of honesty and even less regard for public service.

We can be grateful to Judge Richard Posner, of the Court of Appeals for the Seventh Circuit, for writing an important opinion this last January (Fields v. Wharrie, 2014) establishing the right of the wrongfully convicted to sue corrupt prosecutors, who in Posner's opinion, no longer enjoy the absolute immunity used by prosecutors as a license to lie.

Every prosecutor who withheld exculpatory evidence, as demonstrated by Powell, should face a civil action.

Powell's appellate brief on Honest Services devastated the DoJ's use of its myriad honest services prosecutions, but Powell’s work is about the innocent and the prosecutors, guilty of betrayal.

Someone should write about Sidney Powell, the advocate from the south who just blew the lid off the hidden history of the judiciary and the American prosecutor.

(A longer version of this review appeared here in April 2014.)

Book Review: The Federal Prosecutor, An American Horror Story

Licensed to Lie by former Assistant
United States Attorney and Chief of
of the Appellate Section for the
Western and Northern Districts of Texas,
U.S. Department of Justice

In Sidney Powell's Licensed to Lie: Exposing Corruption in the Department of Justice (Brown Books Publishing Group, 2014) the villain is the United States Department of Justice and a host of federal judges.

In tales that would rival any legal thrillers or action-packed novels by John Grisham or Nelson DeMille, Ms. Powell systematically and cogently lays out stories of death, deceit, and corruption plaguing the DoJ in this non-fiction account of the betrayal of America.

The stories are somewhat familiar to us as recent history—the Enron collapse and the wrongful prosecution of the longest-serving Republican U.S. Senator in history—but what we think we know is turned on its head as we learn what really happened.

With this work, the former federal prosecutor and appellate attorney Ms. Powell stands among the great whistleblowers in modern American history as she exposes the injustices and inhumanities perpetrated by the self-aggrandizing members of two federal DoJ task forces, who truly had a license to lie and to destroy innocent lives without any federal prosecutor having conscience enough to even acknowledge the suffering they caused.

Many jurists already know of Sidney Powell's brilliance and dedication, and Licensed to Lie should be required reading for every high school political science class, every undergraduate college constitutional law class and a must-read for any American of whatever political persuasion with a passing interest in freedom.

No one reading this work can do so without being appalled by the intentional and repeated injustices inflicted onto the innocent.

Steven J. Phillips published No Heroes, No Villains (Vintage, 1978) explaining the procedures of criminal law in a gripping account of a real-life criminal law, murder case. Phillips' classic work today is quaint. In today's culture, the American prosecutor is not a friend, not a force dedicated to justice, and in a civilized and truthful explication is a villain.

"The right to do what the law does not prohibit, without fear of harassment or punishment, is one of the hallmarks of a free society." —Judge Alex Kozinski, Chief Judge, U.S. Court of Appeals for the Ninth Circuit (foreword)

"I wondered if my friends, Judges Carl Stewart, Jacques Wiener, and, Pete Benavides, along with (Judge) Ewing Werlein, who denied all our motions for release twice, even knew, considered, or cared about what their wrong decision had done to this young man [the proven-innocent Bill Fuhs, represented by Seth Waxman] and his family." —Sidney Powell, Licensed to Lie (p. 144)

Enron Task Force

The Houston-based Enron Company morphed from a hard asset pipeline company into a sociopathic energy-trading company in the 1990s, led by Jeffrey Skilling and Chief Financial Office, Andrew Fastow. (p. 13)

In 2001, Enron—with its myriad equity funds, frauds and shell games—imploded into the largest corporate collapse in United States history.

This collapse was a good thing for some, a perfect opportunity to make careers for a collection of prosecutors lacking ethics and working pathologically in pursuit of power—their own power.

Find some people, make up crimes, prosecute these people, and these innocents and their families will just have to suffer.

This is precisely what occurred, during the Enron Task Force prosecutions that saw innocent Americans implacably pursued by a criminal, out-of-control band of prosecutors operating under cover of the United States of America.

As noted by Sidney Powell, "Incited by public outrage, political pressure and cries for vindication from Enron shareholders, the Department of Justice promptly [January 2002] assembled the Enron Task Force—a joint effort of the department, the SEC, the FBI and the Internal Revenue Service. Because of the Bush connection to Ken Lay, the Enron Task Force was untethered from the department." (p. 25)

The Task Force was staffed with ambitious prosecutors from across the country, and was given virtually unlimited resources.

The Task Force was also untethered from ethical adult supervision and prosecutors looking to make a career from the ashes of Enron determined to get somebody, anybody in their pursuit of a group of innocents, along with the perpetrators at Enron.

Ms. Powell working in various capacities in defense of the innocent (particularly James Brown of Merrill Lynch) worked tirelessly in her advocacy, facing the corruption of the prosecutors of the Task Force acting as a veritable Star Chamber in some instances, aided by an oppressive judiciary in the Fifth Judicial Circuit, so unyielding and committed to letting obvious injustices go uncorrected that this brilliant veteran jurist, Sidney Powell, witnessed the physical disintegration of innocent people and their families as an oblivious nation immersed by the trauma of 9/11 never knew their story, until now.

Powell names the names, (Task Force leaders and prosecutors, Leslie Caldwell, Andrew Weissmann and Matthew Friedrich, for example) and tells the facts, and nothing in the U.S. Department of Justice (DoJ) ought to be the same after this story is told of American criminal justice as an American horror story inflicted by federal prosecutors.

Any impediments, lawful duties of federal prosecutors such as the disclosure of exculpatory information to the defense (the Brady Rule), were abandoned in the frenzied quest to secure criminal convictions of innocent people.

The former federal prosecutor, Powell, concludes: "As long as they [a small group of federal prosecutors] are free from accountability, the innocent are at risk and the public can have no confidence in our legal system." (p. 403)

Polar PEN

In roughly the same timeframe as the Enron Task Force was unleashed, overzealous DoJ prosecutors from the Public Integrity Section (PIN) of Main Justice targeted U.S. Senator Ted Stevens (R-Alaska; 1968-2009) in a prosecution so disingenuous and self-consciously artificial that the presiding federal judge, U.S. District Court Judge Emmet Sullivan (aided in part by an FBI agent who blew the whistle on the prosecutors), after learning of massive and systemic withholding of exculpatory evidence by federal prosecutors, ordered a special prosecutor (Henry F. Schuelke III) be empaneled to investigate the criminal wrongdoing of the prosecution.

The DoJ PIN in this period operated an ongoing investigation into alleged public corruption in Alaska, nicknamed Polar PEN, begun in 2004.

Sidney Powell chronicles the criminal prosecutions and blatant miscarriage of justice caused and committed by Polar PEN, that resulted in at least one suicide, heroic whistle-blowing of prosecutorial misconduct by a FBI agent, Chad Joy, the unlawful and wrongful 2008 conviction (later set aside at the request of Attorney General Eric Holder in 2009) of World War II hero and Senator Ted Stevens that ruined Stevens' political career, and the appointment of a special prosecutor to investigate the prosecutorial misconduct.

Two main perpetrators of Polar PEN are Matthew Friedrich and Rita Glavin. who took over control and manipulated the prosecution of Stevens, but who, Powell notes, "were way too politically connected and savvy to take the fall." (p. 8)

The failure of the Polar PEN prosecutors of Stevens to turn over exculpatory evidence the prosecution had in its possession should have landed the bunch of legal thugs in prison; the Polar PEN persecutors were guilty though not ultimately held accountable, the grisly suicide of Nicholas Marsh, PEN prosecutor notwithstanding, who found himself on the wrong side of a criminal investigation.

Marsh committed suicide after being investigated for his (and several others') criminal withholding of exculpatory evidence from Sen. Stevens.

Cases without Crimes

"I wondered how much the Enron Task Force had collaborated with the Polar Pen prosecutors and  who had concocted all of these overly creative cases without crimes as bogus 'honest services' allegations. The prosecutors had obviously cross-pollinated to produce baseless crimes and tortured law in both major investigations. The Enron Task Force cabal had about a two-year head start on Polar PEN, but the investigators and prosecutions overlapped for several years," writes Powell. (pp. 238-239)

Powell does not put the corruption of these atrocities in the context of American legal history, in the context of what Attorney General Robert H. Jackson warned federal prosecutors about in his memorable April 1, 1940 address: "Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character. Whether one seeks promotion to a judgeship, as many prosecutors rightly do, or whether he returns to private practice, he can have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just."

It's for the reader to decide the relevancy of jurists like Jackson.

Nor does Powell mention the contemporaneous U.S. Attorneys scandal though the creative employment of the Honest Services statute was used extensively by unscrupulous U.S. attorneys such as Steven Biskupic (Eastern District of Wisconsin, 2001-2008) in his infamous Georgia Thompson prosecution, a case without a crime reversed in oral arguments in a spectacular action by a three-judge panel for the Court of Appeals for the Seventh Circuit in 2007.

Wrote Chief Judge Frank Easterbrook: "Thompson was convicted under 18 U.S.C. § 1341 as well as under § 666. Section 1341 forbids 'any scheme or artifice to defraud' that predictably employs the United States mails. What 'fraud' did Thompson commit, and who was the victim? Thompson did not bilk the state out of any money or pocket any of the funds that were supposed to be used. ... (I)n response to McNally v. United States, ... Congress enlarged the scope of criminal fraud by enacting 18 U.S.C. § 1346. This statute provides: For the purposes of this chapter, the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services. ... It is linguistically possible to understand 'private gain' as whatever adds to the employee's income or psyche-anything the employee would pay to have, rather than pay to avoid-but the Rule of Lenity counsels us not to read criminal statutes for everything they can be worth. ... Thompson's conviction is reversed, and the case is remanded with instructions to enter a judgment of acquittal." (U.S. v. Georgia L. Thompson, argued and decided on April 5, 2007)

Honest services. This is an ironic statute used by a gang of outlaw prosecutors who have no conception of honesty and even less regard for public service.

We can be grateful to Judge Richard Posner, also of the Court of Appeals for the Seventh Circuit, for writing an important opinion this last January (Fields v. Wharrie, 2014 U.S. App. LEXIS 1333) that establishes the right of the wrongfully convicted to sue corrupt prosecutors, who in Posner's opinion, no longer enjoy the absolute immunity used by prosecutors as a license to lie.

Every prosecutor who withheld exculpatory evidence, as demonstrated by Powell, should face a civil action from his and her victims.

Powell's appellate brief on Honest Services devastated the DoJ's use of its myriad "honest services" prosecutions in several cases, a catch-all invention that these prosecutors used for its apparent fun and their profit. (pp. 298-99)

But the suffering endured by the many innocents she describes, and the utter lack of integrity, fair play and justice by the federal prosecutors leave Ms. Powell without faith in the American legal system as a forum where justice might be attained.

Outside of a small group of jurists, and friends and family of the innocents, who among us knows and cares that deceitful federal prosecutors remain free as victims struggle to build shattered lives?

Powell throws this question to the reader:

The games and tactics of (federal prosecutors) Friedrich, Ruemmler, Weissmann, Caldwell, and others on the Enron Task Force should never have been tolerated by the Houston federal judiciary or by the Fifth Circuit—much less invigorated by Friedrich and Glavin as heads of the Criminal Division of the Department of Justice to pervert the trial of a United States Senator. There is no telling how many others have been or will be wrongfully convicted as this cabal of corrupt cronies ambitiously climbs and weaves through the highest ranks of the Department of Justice, the FBI and the White House—in between their powerful partnerships in some of our country's most prestigious and influential law firms.

What happened to the defendants in this book can happen to anyone. Blind judges do not render blind justice.

If it were your husband, your sister, your child on trial, what should the rules be? Should the prosecutors be required to disclose everything that only he possesses that is favorable to the defense? Should those who are supposed to enforce the laws be required to abide by them?

Senate Bill 2197, the Fairness in Disclosure of Evidence Act (codifying the Brady Rule), is still sitting in Congress. It would create a clear rule that federal prosecutors must produce all evidence favorable to the defense. (pp. 402-403)

Its fate, and the fate of justice is ultimately up to the American people.

The United States of America seems to have lost its way; it surely has lost its moral compass as the prosecutor and the judiciary inflict grievous harm onto innocent people in the name of justice.

A problem for the public is that what Sidney Powell writes about, what Powell warns us about, occurred and is occurring off the public's radar, beyond our awareness and thus beyond the reach of decency and the rule of law that could not be found by the innocent.

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. 84–85) [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.