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.

Judges Hostile to Anti-Marriage Equality; Hate as Tradition Is No Argument

Carol Schumacher and Virginia Wolf

Hear the oral arguments in which brilliant legal minds lecture a Wisconsin DOJ attorney. Enter 14-2526 for orals in Virginia Wolf v. Scott Walker.

The we-don't-like-gays argument because of tradition meets cold reception in oral arguments in before an appellate court this morning.

All the Republican Party has in its legal arguments is hate and bigotry, backed by "tradition."

"Do you have anything besides tradition," asked Judge Posner at the Nine-minute, eight-second mark.

Later Posner asked: "... "The tradition is based on hate, isn't it. You don't think there is a history of rather savage discrimination ... ?"

Posner asked, "What is the rational basis for a legislative choice for denying same-sex marriage?"

Posner ripped into Wisconsin Assistant Attorney General Timothy Samuelson throughout the oral arguments.

"Look, answer my question, who is being helped by this law?" demanded Posner.

A federal court panel hearing the gay marriage equality case before the Court of Appeals for the Seventh Circuit was hostile this morning to hate as "tradition," ala Loving v. Virginia (1967) as legal argument.

Reports Annie Sweeney and Meredith Rodriguez from the Chicago Tribune:

Judge Richard Posner waited just seconds before interrupting the solicitor general from Indiana, beginning a line of questioning about why children of same-sex couples should not be allowed to have legally married parents, as do children of heterosexual couples.

To press his point, Posner told a fictitious story of a 6-year-old forced to go to school and see that he is different from his classmates.

Reports Patrick Marley from the Milwaukee Journal-Sentinel:

A three-judge panel from a federal appeals court on Tuesday closely questioned Wisconsin and Indiana's bans on same-sex marriage, with one judge calling parts of the Great Lakes states' arguments "absurd" and "ridiculous."

"These people and their adopted children are harmed by your law," Judge Richard Posner said of gay and lesbian couples who are barred from getting married. "The question is what is the offsetting benefit of your law. Who is being helped?" ...

Posner, who at times appeared to lecture the attorneys defending the bans, focused on the ability of same-sex couples to adopt children. He noted adopted children would benefit if their parents could claim the tax breaks and other perks of being married.

"These children would be better off if their parents could marry, no? It's obvious," Posner said.

The Associated Press' Michael Tarm offered a similar report:

Judge Richard Posner, who was appointed by President Ronald Reagan, was dismissive when Wisconsin Assistant Attorney General Timothy Samuelson repeatedly pointed to 'tradition' as the underlying justification for barring gay marriage.

"It was tradition to not allow blacks and whites to marry — a tradition that got swept away," Posner said. Prohibition of same sex marriage, he said, is "a tradition of hate ... and savage discrimination."
Posner frequently cut off Indiana Solicitor General Thomas Fisher, just moments into his presentation and chided him to answer his questions.

At one point, Posner ran through a list of psychological strains of unmarried same-sex couples, including having to struggle to grasp why their schoolmates' parents were married and theirs weren't.

"What horrible stuff," Posner said. What benefits to society in barring gay marriage, he asked, "outweighs that kind of damage to children?"

The answer has to do with "procreation," Fisher answered.

In purely political terms, Scott Walker and J.B. Van Hollen would do well to drop the case, Walker v. Wolf (Milwaukee Journal-Sentinel document), as pro-marriage equality is spreading like wildfire.

Scott Walker apparently feels he needs the religious right on the issue facing a tough reelection bid, and Walker remains a religious right extremist in his own ideology expressed throughout his political career.

As for Judge Richard Posner, I feel deeply moved by this mind.

Fed Appellate Judge Recants: We Blew Voter ID Opinion

Authoring Judge of Voter ID case recants

Republican Party Voter Obstruction Project Could Be Heading for Trainwreck

Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit (1981-present) is a sitting justice who writes a column for Slate Magazine and regularly intones on the abundant rightwing, judicial idiocies of our time.

In an amazing, audacious and perhaps bizarre interview featuring Posner and Mike Sacks (Host/Producer with HuffPost Live) first reported by Rick Hasen, Posner has recanted his 2007 decision in Crawford heard before the U.S. Court of Appeals for the Seventh Circuit, and authored by Posner, affirmed by the U.S. Supreme Court in 2008.

 "The purpose of the Indiana law is to reduce voting fraud, and voting fraud impairs the right of legitimate voters to vote by diluting their votes," Judge Richard Posner wrote in his majority opinion in 2007, affirmed by the U.S. Supreme Court in CRAWFORD v. MARION COUNTY ELECTION BD. (Nos. 07-21 and 07-25) (2008).

Posner has now publicly recanted his opinion.

The Brad Blog reports, "This is nothing less than remarkable. The 7th circuit court judge who wrote the majority opinion in the landmark Crawford v. Marion County Election Board case, has now admitted he got it wrong! 'I think we did not have enough information," Judge Richard Posner said in remarks today. "If the lawyers had provided us with a lot of information about the abuse of voter identification laws, this case would have been decided differently.'"

Posner made his comments in an interview with Mike Sacks discussing jurisprudence and Posner's new book, Reflections on Judging (Harvard University Press, 2013).

Writes Hasen:

In response to Mike Sacks’s questions about whether Judge Posner and the 7th circuit got it wrong in Crawford case, the one upholding Indiana’s tough voter id law against constitutional challenge (Posner says):

'Yes. Absolutely. And the problem is that there hadn’t been that much activity with voter identification. And … maybe we should have been more imaginative… we…. weren’t really given strong indications that requiring additional voter identification would actually disfranchise people entitled to vote. There was a dissenting judge, Judge Evans, since deceased, and I think he is right. But at the time I thought what we were doing was right. It is interesting that the majority opinion was written by Justice Stevens, who is very liberal, more liberal than I was or am ... But I think we did not have enough information. And of course it illustrates the basic problem that I emphasize in book. We judges and lawyers, we don’t know enough about the subject matters that we regulate, right? And that if the lawyers had provided us with a lot of information about the abuse of voter identification laws, this case would have been decided differently.'

Here’s the quote from Posner’s book, which Mike Sacks flashed on the screen: '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.'

The repercussions for protecting voter rights of Americans against the Republican and Tea Party are stunning.

The whole nationwide Republican Party project of obstructing the voting of Americans could be in dire jeopardy.

This is because Crawford is the landmark case that, for example, the Wisconsin DoJ, Scott Walker and even the historically (and formerly) non-partisan Wisconsin Legislative Reference Bureau (and every other GOP state hack) have hyped (erroneously) as the controlling legal case on challenges to the GOP's photo voter-obstruction statutes.

The Crawford case was challenged as unconstitutional on its face, so no evidence was presented demonstrating how voters were obstructed.

This lack of the evidence will not be a problem in Wisconsin.

In Wisconsin, two federal challenges to the state Voter ID law are set to heard on November 4: Frank v. Walker, (Case 11cv1128), (U.S. District Court for the Eastern District of Wisconsin) and Jones et al v. Deininger et al (Case 2:12-cv-00185), (U.S. District Court for the Eastern District of Wisconsin).

There is a mountain of social scientific evidence accumulated in Wisconsin Courts in state cases and by the federal plaintiffs demonstrating how voters were intended by this GOP legislation and the practice of the legislation to be obstructed from voting.

Look for a federal decision finding that Act 23, Wisconsin's Photo Voter ID law, is discriminatory and not supported by valid neutral justifications.

Mike Sacks interview with Judge Richard A. Posner:

Richard Posner's Extraordinary Move to Sound the Alarm on GOP Voter Obstruction

Update: Republicans are not so certain about voters; enacting voter obstruction laws wherever they hold a majority, secure in the knowledge that federal Republican judges will reside in the Republican legislatures' "fact-free cocoon in which to lodge the federal judiciary." (Posner, Frank v. Walker; p. 26)
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"Posner's dissent includes a devastating response to virtually every false and/or disingenuous rightwing argument/talking point ever put forth in support of Photo ID voting restrictions, describing them as "a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government." (Brad Friedman)
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On the Court of Appeals for the Seventh Circuit known for its intellectual bulk, judges such as Easterbrook, Wood and Posner stand out.

What makes the public intellectual Richard Posner stand out more is this academic appointed by Ronald Reagan in 1981 has grown as a jurist, and now stands as a bulwark against the oppression the judiciary can inflict upon American citizens.

Posner as a sitting judge has taken the extraordinary step of requesting a rehearing on behalf of the five judges dissenting from Judge Easterbrook’s appalling opinion in Frank v. Walker.

The rehearing failed five-to-five.

The October 10 dissent authored by Posner is scathing and is certain to be noted when voting rights advocates take their consolidated cases to the US Supreme Court where a granting of cert is expected within 90 days.

Notes Posner:

The Practitioner’s Handbook for Appeals to the United States Court of Appeals for the Seventh Circuit states that 'en banc rehearing is authorized without a party’s invitation. A member of the court may ask for a vote on whether to rehear a case en banc.' I asked for a vote on whether to rehear the appeals en banc. The judges have voted, the vote was a 5 to 5 tie, and as a result rehearing en banc has been denied. We—the five who voted to grant rehearing en banc—believe that the decision to allow the panel’s opinion reversing the district court to stand, without consideration of the case by the full court, is a serious mistake.

Posner presents myriad arguments eviscerating the Easterbrook opinion, and as an example notes one bizarre element in Easterbrook's opinion that dismissed social scientific evidence introduced at federal trial last year because the evidence was published in the Harvard Law Review, a fact noted earlier this week by Rick Hasen.

Easterbrook refers to Judge Lynn Adelman, writing in his decision and order issuing a permanent injunction on April 29, 2014:

[O]ne of the plaintiffs’ expert witnesses, Barry Burden, a professor of political science at the University of Wisconsin–Madison, testified that the available empirical evidence indicates that photo ID requirements have no effect on confidence or trust in the electoral process. He described a study conducted by Stephen Ansolabehere and Nathaniel Persily and published in the Harvard Law Review which looked at the relationship between photo ID laws and voter confidence in the electoral process. See Stephen Ansolabehere and Nathaniel Persily, Vote Fraud in the Eye of the Beholder: The Role of Public Opinion in the Challenge to Voter Identification Requirements,121 Harv. L. Rev. 1737, 1756 (2008). Burden explained that this study employed multivariate analysis of survey data and found “zero relationship” between voter ID laws and a person’s level of trust or confidence in the electoral process. (p.18)

No relationship between voter ID laws and public confidence, the main argument advanced by Republicans in defense of their voter obstruction project after the occurrence of in-person voter fraud assertions by the Wisconsin DoJ were conceded not to exist during the 2013 trial in federal court.

This study is dismissed by Easterbrook.

Writes Posner:

"The panel opinion dismisses the Ansolabehere and Persily article on the ground that because it was published in the Harvard Law Review, it was not peer-reviewed. So much for law reviews. (And what about Supreme Court opinions? They’re not peer-reviewed either.)"

Posner goes on, as careful as Easterbrook is reckless in Easterbrook's "fact-free cocoon."

Concludes Posner:

"To conclude, the case against a law requiring a photo ID as a condition of a registered voter’s being permitted to vote that is as strict as Wisconsin’s law is compelling. The law should be invalidated; at the very least, with the court split evenly in so important a case and the panel opinion so riven with weaknesses, the case should be reheard en banc."

Judge Posner Rips Milwaukee County Killer Cops

James Franklin Perry - Killed by Milwaukee
police in 2010. Perry is a human being, not
an "animal."

Human Decency v. 'Beyond Stupid' Milwaukee Killer Cops;
Federal Civil Rights Case on Cops Calling Black Man an "Animal" Before Watching Him Die in Custody

"Do you understand? Do you understand? ... Don't you understand?" Judge Richard Posner was offended by a fool, the 'defecating on himself is not unusual' Susan Lappen of the Milwaukee City Attorney's office, defending the 2010 death of a human being, James Franklin Perry, in the custody of indecent police.
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Updated - How do people get to the point where they willfully inflict injury and trauma onto another, to the point of death?

One journey for this type of human garbage ends in a supportive institution, the Milwaukee cops—racist, brutal thugs. Human malignancy has a home in the Milwaukee County Sheriff's office and the city of Milwaukee Police.

If you live in Milwaukee County, you can become a cop and kill a black man with no accountability, reveling in the sick satisfaction cops take in these pursuits, (Vielmetti, Milwaukee Journal Sentinel).

Republicans and other assorted racists on the bench such as the late Rudolph Randa will back you up.

James Franklin Perry died in police custody in Milwaukee in 2010. Bet the cops enjoyed a nice laugh, though their cheer may have been cut short as Mr. Perry's control over his body ceased when he suffered the fatal epileptic attack, documented in the hospital from which he was being transferred.

The estate of James Franklin Perry is suing the city and county of Milwaukee.

The case is Estate of James Franklin Perry v. Cheryl Wenzel, (16-2353).

Reports Bruce Vielmetti:

Federal appeals judges tore into Milwaukee police handling of a prisoner who died in custody during an epileptic seizure in 2010, during oral argument on an appeal of his family's civil rights case last week.

'I must say, I don't think I've ever seen such bad police work,' said Judge Richard Posner, part of a three-judge panel at the 7th Circuit U.S. Court of Appeals hearing the case in Chicago.

It was a rough morning Thursday for the city's attorney, Susan Lappen, who was interrupted repeatedly by Posner and Judge Ann Williams during a session that lasted more than an hour, about double the time normally allotted for oral argument.

The estate of James Franklin Perry, 41, sued city, county and hospital officials in 2012. In May, U.S District Judge Rudolph Randa dismissed all the claims against city and county officials and sanctioned the plaintiff lawyers, saying they pressed their case even after it became clear the county had no liability.

Randa's typically ludicrous edict won't survive appellate scrutiny.

Decency from the United States Court of Appeals for the Seventh Circuit

In oral arguments in James Franklin Perry last week, Judge Richard Posner in particular would have nothing of what he called Milwaukee's "ridiculous" arguments offered by Susan Lappen of the Milwaukee City Attorney's office. Lappen has a history of defending indecent conduct by Milwaukee cops.

Posner, clearly appalled by the recounting of Mr. Perry dying and writhing on the floor, called the cops "beyond stupid" in oral arguments, and excoriated the shameless Susan Lappen. Beyond human would have been more apt. Posner called police conduct "grotesque" and "pointless."

All Milwaukee cops involved will be cleared of any wrongdoing.
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On a personal note, I admire Richard Posner's powers of logic, and commitment to rigorous empirical investigations in hearing federal litigation. I admire more Posner's decency in hearing Estate of James Franklin Perry v. Cheryl Wenzel, (16-2353). Posner is offended and angry. He should be, we should be. Bear witness.

Listen to oral arguments at the United States Court of Appeals for the Seventh Circuit from last week.

You'll be sickened, and then inspired by Judges Richard Posner and Ann Williams, and believe it or not by Judge Daniel Anthony Manion.

Judge Posner Ripped Wisconsin DoJ Atty on GOP Anti-abortion Law

Richard A. Posner rips GOP's anti-choice
law, enjoined in Wisconsin in August

Heading into the new year, we can be thankful that the judiciary may become reinvigorated as a Constitutional check on malicious, bigoted underground movements, arising now in the Republican Party in states across the nation

Press reports on the December 3, 2013 oral arguments on Wisconsin GOP's anti-abortion law reveal a hostile Judge Richard Posner immediately interrupting Wisconsin's assistant attorney general Daniel Lennington with long questions that could only be characterized as hostile, cutting and brilliant.

This is the Richard Posner that everyone besides the Tea Party and Scott Walker want—pull up a chair, a hot cup of coffee and listen to Posner and his two colleagues on the panel, David F. Hamilton and Daniel A. Manion.

You can hear attorney Lennington getting hammered (mostly by Posner and Hamilton) at the Court of Appeals for the Seventh Circuit. Enter 13-2726, for Planned Parenthood of Wisconsin v. J.B. Van Hollen.

Wisconsin's anti-abortion law, Act 37, passed with unanimous GOP support and unanimous Democratic opposition, was enjoined in August 2013 by U.S. District Judge William Conley.

No one believes Wisconsin Act 37 is anything but an anti-abortion law intended to create barriers to a woman's choice, even if Scott Walker and the Republican Party pretend otherwise.

Reports Michael Tarm:

At times appearing exasperated, Posner repeatedly interrupted Lennington, asking why lawmakers — if it's true they saw the law as primarily a public health measure and not an anti-abortion bill — focused on abortion clinics and not other outpatient clinics, such as those performing laparoscopic surgeries.

'Why did they start with abortion clinics? Because it begins with the letter 'A'?' Posner asked.

"Wisconsin (is) one of several states where hospital admitting privileges are required for abortion providers," reports the New York Times, all states with strongly anti-choice GOP governors such as Scott Walker.

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.

Voter Suppression Case Heads to Supreme Court

Update: Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit (1981-present) is a sitting justice who writes a column for Slate Magazine and regularly intones on the abundant rightwing, judicial idiocies of our time.

In an amazing, audacious and perhaps bizarre interview featuring Posner and Mike Sacks (Host/Producer with HuffPost Live) first reported by Rick Hasen, Posner has recanted his 2007 decision in Crawford heard before the U.S. Court of Appeals for the Seventh Circuit, and authored by Posner, affirmed by the U.S. Supreme Court in 2008.
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Old habits die hard for Republicans.

Unfortunately, for the GOP many African-Americans remain clueless as to their proper place in American society. A hint: It's not at the ballot box.

So the Republican Party believes.

The U.S. Supreme Court announced that it will hear a voter ID case stemming from an Indiana law targeting poor and minority Americans to keep them from voting.

The Court is likely to decide the case next spring in time for the 2008 presidential elections, thereby possibly delivering a death blow to the Republican Party's national program (administered through the DoJ, such as US Atty's Biskupic's voter fraud cases, and state laws) of suppressing black, elderly and poor voters who skew against voting Republican.

Judge Terence Evans of the Court of Appeals for the Seventh Circuit in dissent (cases are Crawford v. Marion County Election Board, 07-21, and Indiana Democratic Party v. Rokita, 07-25) clarifies the issue:

"Let's not beat around the bush. The Indiana voter photo ID law is a not-too-thinly veiled attempt to discourage election-day turnout by folks believed to skew Democratic."

The let's-allow-the-blacks-to-vote crowd (those crazy liberals!) appeal to a Constitutional right to vote derived from the First and Fourteenth Amendments, and point out that undue burdens like the Indiana law violate these rights of the First and Fourteenth Amendments for segments of the electorate.

The case will likely hinge on whether the Indiana voter ID statute is deemed reasonable in advancing state interests in preventing non-existent voter fraud and administering stable, secure elections viz a vis the liberty interests of voters facing undue burdens in casting their votes offsetting the state interests (the partisan intent of the state law will be of no consequence for the majority of this U.S. Supreme Court).

Judge Posner writing the majority Seventh Circuit's opinion concludes (indexed as 06-2218 Crawford, Willim v. Rokita, Todd):

"Perhaps the Indiana law can be improved - what can't be? - but the details for regulating elections must be left to the states ... (Article I, Section 4, U.S. Constitution)".

You see, Posner has never been a freedom rider, hence his opinion that the benefits of voting are elusive.

Let's handicap the case before the corrupt U.S. Supreme Court with a wild guess:

- Stephen Gerald Breyer: Will vote to reverse.
- Ruth Bader Ginsburg: Will vote to reverse.
- David H. Souter: Will vote to reverse.
- John Paul Stevens: Will vote to reverse.
- Anthony Kennedy: ????????
- Antonin Scalia: Affirm racist state law.
- Clarence Thomas (yuck): Affirm racist state law.
- John Roberts: Affirm racist state law.
- Samuel Alito: Affirm racist state law.

Maybe we'll get a surprise next spring, but betting on this case would be tantamount to betting on a Don King-promoted fight held in Las Vegas.

- Seventh Circuit's Opinion -

Update: Via by The Maven:

Via our friends over at SCOTUSblog, here are the briefs filed so far with the Supreme Court, seeking a writ of certiorari:

- Petitioners' Brief in Crawford v. Marion City Election Board (07-21)
- Petitioners' Brief in Indiana Democratic Party v. Rokita (07-25)
- Respondents' Brief in Opposition to both petitions
- Supplemental Brief of Respondents
- Petitioners' Reply in Crawford- Petitioners' Reply in IDP

According to the Orders List from the court, the two matters have been consolidated, and:

- the opening merits brief is due on November 5,

- the opposition on December 3,

- and a reply on December 28.

Briefs of any amici curiae will be due on November 12 (if in support of petitioners) and December 10 (if supporting respondents).

Oral argument will most likely take place in February.
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Wisconsin Voter ID Law Challenge Gets No Hearing Before Supreme Court

Updated - Wisconsin case assists GOP efforts to block voters likely to oppose the GOP

Voter Photo ID is law of the land in Wisconsin - Implementation will begin AFTER the Spring General Election on April 7

Update II: "Our legal team did an outstanding job defending Wisconsin law, from the trial court to the U.S. Supreme Court. Absentee ballots are already in the hands of voters, therefore, the law cannot be implemented for the April 7 election. The Voter ID law will be in place for future elections – this decision is final."—Wisconsin Attorney General Brad Schimel

Update: It is possible that the four 'liberal' justices on the Court torpedoed this challenge to Wisconsin's Voter ID out of concern the five rightwing activist justices on the Court are looking to further slice off section(s) of what remains of the the Voting Rights Act. This suggests that the five GOP justices are so off-the-charts hostile to the Voting Rights Act, (enacted to enforce the Fifteenth Amendment to the Constitution of the United States, and for other purposes), that a radical policy of further disfranchisement is coming in the future, should the five GOP justices remain on the Court.
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The U.S. Supreme Court decided this morning to reject a challenge by civil rights activists to Wisconsin's Photo Voter ID law.

The cases, Walker v. Frank (and a consolidated case), will not be reviewed by the Court, a refusal to hear a Photo Voter ID law on the merits in the first major challenge before the Court since Crawford v. Marion County Election Board (Indiana) (2008), a state-specific and content-specific opinion.

The Court will not rule whether Wisconsin's restrictive Photo Voter ID law abridges the right to vote without justification in violation of the U.S. Constitution's Equal Protection Clause and the Voting Rights Act, Section 2.

Republicans nationwide have used Voter ID laws and other laws to target the disabled, minorities, classes of the elderly and young voters who have trended heavily Democratic in their voting patterns.

As noted in SCOTUSBlog, at issue in the Frank case is "Whether a state’s voter ID law violates the Equal Protection Clause where, unlike in Crawford v. Marion County Election Board, the evidentiary record establishes that the law substantially burdens the voting rights of hundreds of thousands of the state’s voters, and that the law does not advance a legitimate state interest; and (2) whether a state’s voter ID law violates Section 2 of the Voting Rights Act where the law disproportionately burdens and abridges the voting rights of African-American and Latino voters compared to White voters."

Wisconsin's Voter ID law was upheld by the Court of Appeals for the Seventh Circuit in a heavily criticized opinion by Judge Frank Easterbrook on October 6, 2014 issued after voting had already begun in the 2014 general Fall election. Judge Easterbrook's decision is now operative.

The Voter ID law was enjoined days later after an order by the U.S. Supreme Court (now terminated) issued on October 9, 2014, (Mal Contends) reinstating U.S. District Judge Lynn Adelman's decision and order issuing a permanent injunction on April 29, 2014.

After the Supreme Court order, Wisconsin's Republican attorney general at the time, J.B. Van Hollen, issued a statement contradicting the Court order, saying Wisconsin will "have voter ID on election day" in another GOP effort to confuse and mislead voters. (Mal Contends and Hall, Wisconsin State Journal) Van Hollen later backed away from his statement.

Frank v. Walker also features the extraordinary development of the federal appellate court's Judge Richard Posner's call for a rehearing of the Frank decision on October 10, 2014, a suggestion that failed five-to-five.

What is significant in Posner's 43-page request is the meticulous language in which Posner "includes a devastating response to virtually every false and/or disingenuous rightwing argument/talking point ever put forth in support of Photo ID voting restrictions, describing them as 'a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government,'" as noted by the legal-political writer Brad Friedman and other legal scholars across the nation. (Mal Contends)

Posner is the author of the 2007 appellate court decision upholding Indiana's Voter ID law in Crawford.

Posner in 2013 states that "data" and "evidence" on the consequences of judicial opinions ought help to guide appellate decisions on the constitutionality of state Voter Id laws, and other judicial decisions. (Posner, The New Republic)

The author of the 2008 U.S. Supreme Court opinion on Crawford, Justice John Paul Stevens (1975-2010), has also issued a statement after he retired in which he takes issue with Voter ID laws as a means of obstructing voters (Bravin, Wall Street Journal and Josh Blackman) and with the Court's evisceration of the Voting Rights Act in 2013. (Cohen, The Atlantic)

Prosecutors Getting Away with Disgrace, Insult to Humanity

The Divine Right of Kings

Update: When prosecutors do their job and hold corrupt public officials accountable, like the detestable Kelly Rindfleisch, Scott Walker trusted aide and felon, we ought consider giving prosecutors kudos. Hey, Kelly, are you saying you're innocent now?
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JUDGE HAYWOOD: Herr Janning, it 'came to that' the first time you sentenced a man to death you knew to be innocent.
- Judgment at Nuremberg (Kramer. 1961)

A telling glimpse at the American political culture is seen in the reaction to the January 2014 legal opinion of Richard Posner, judge on the Court of Appeals for the Seventh Circuit.

The case, Fields v. Wharrie and Kelley (No. 13-1195) (740 F.3d 1107; 2014 U.S. App. LEXIS 1333), drew a few notices in legal journals and blogs, even though Posner blasted corrupt prosecutors for their mendacious, "breathtaking injustice" that landed an innocent man in prison for 17 years.

Beyond that, the silence out was deafening.

"If the old Lord Acton axiom is true — that power corrupts, and absolute power corrupts absolutely — enormous power with no accountability can be enormously destructive," opines Radley Balko on the case. (Washington Post)

This is precisely what happened, as Posner notes of Mr. Fields who "until he was acquitted in a retrial; he later received a certificate of innocence from the court in which he had been tried," was the victim of "coerced witnesses to give testimony that the defendants (prosecutors) as well as the witnesses) knew to be false."

Much good may come from Posner's decision demanding accountability, affirming the right of the innocent and wrongfully convicted to sue for damages against deceitful prosecutors.

Absolute immunity for prosecutors, what former federal prosecutor Sidney Powell correctly notes is prosecutors' License to Lie, may go the way of the divine right of kings.

What I can guarantee you is that the speeches of Robert Jackson will not populate the campaign webpages of most candidate for District Attorney and Attorneys General across the nation. Jackson's words should. Said Jackson in a famous address in 1940:

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.

Today, police, prosecutors and judges all too often engage in careerism and are laden with defects of character, imprisoning millions of Americans in creating what Glenn C. Loury in the Boston Review terms "a leviathan unmatched in human history." I know of Dane County (Wisconsin) police who have intentionally corrupted the judicial process for civil traffic violations.

This must change.

Face it. We live in a society so putative that innocents are routinely sent to prison, and killed.

You may see a case covered in the 'news' once every three or four years like Cameron Todd Willingham in Texas, but innocents suffering in the American leviathan face perpetrators and bystanders.

The words of Posner in Fields do bring some comfort:

A prosecutor cannot retroactively immunize himself from conduct by perfecting his wrongdoing through introducing the fabricated evidence at trial and arguing that the tort was not completed until a time at which he had acquired absolute immunity. That would create a 'license to lawless conduct,' which the Supreme Court has said that qualified immunity is not to do. Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). [Prosecutor] Wharrie's interpretation of our decision in Buckley would place that decision in conflict with the Supreme Court's Buckley decision, by giving absolute immunity to prosecutor-investigators who having fabricated evidence make sure that the evidence is used to convict the innocent victim of the fabrication. (emphasis mine)

The criminal justice system is a horror show and prosecutors are a big part of the problem.

Here's Sidney Powell's latest commentary, and as Powell knows the ethical violations by prosecutors are committed by local district attorneys' offices as often as by the federal DoJ:

By Sidney Powell

The Project On Government Oversight published an extensive report yesterday revealing that Department of Justice has been concealing hundreds of ethical violations by its prosecutors.  Adding to this injustice, the Department refuses to identify the offending prosecutors or to inform defendants who have been affected by their misconduct.

In the majority of the matters—more than 400—OPR (Office of Professional Responsibility) categorized the violations as being at the more severe end of the scale: recklessness or intentional misconduct, as distinct from error or poor judgment.
The information the Justice Department has disclosed is only part of the story. No less significant is what as a matter of policy it keeps from the public.
As a general practice, the Justice Department does not make public the names of attorneys who acted improperly or the defendants whose cases were affected. The result: the Department, its lawyers, and the internal watchdog office itself are insulated from meaningful public scrutiny and accountability.

We can say from our own experiences with the Department’s “Office of Professional Responsibility” that it is ineffective if not complicit. Legitimate grievances go ignored. Their primary expertise lies in circling the wagons and protecting the offenders. This report makes it all the more clear. There is no transparency, and consequently, the Department of Justice can be given no credibility. It is way overdue for a  major clean-up, and as Judge Kozinski, and the Washington Post and others have said recently, it is time for a national discussion of these issues crucial to the administration of justice–if there is to be any justice at all.
#
For my part, I know of a district attorney in northern Wisconsin who should he attempt to maliciously prosecute an innocent again, I will dedicate myself to making him the most famous DA in Wisconsin history.

The GOP's War on Marriage and the 14th Amendment

Equal protection and due process—we have come a long way, baby but 14th Amendment cases involving marriage rights is one battle of a wider war launched by the GOP and judges such as Antonin Scalia against the 14th Amendment.

U.S. District Judge Robert Shelby has directly applied the Supreme Court’s decision (United States v. Windsor (2013)) that struck down the federal Defense of Marriage Act to a state’s (Utah) ban on same-sex marriage on Constitutional grounds.

"The Constitution protects the choice of one’s partner for all citizens, regardless of their sexual identity," U.S. District Judge Robert J. Shelby writes in his 53-page opinion. Utah is blazing a path for Australia, India and Russia.

Judge Shelby writes: ''The court holds that Utah's prohibition on same-sex marriage conflicts with the United States Constitution's guarantees of equal protection and due process under the law. The state's current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason,'' reports Erik Eckholm and John Schwartz in the New York Times.

As noted by Dylan Scott in Talking Points Memo, Shelby cites anti-same-sex marriage Justice Scalia several times from this statist reactionary's dissent in United States v. Windsor (2013) using Scalia's words comprising legal logic leading to Constitutional rights ultimately being guaranteed to Americans of the same sex who wish to be married:

From beginning to end of Shelby's opinion Friday, in four different citations scattered throughout, he favorably cited Scalia's dissent, buttressing his legal analysis with Scalia's warnings.

In its 5-4 decision in June, the Supreme Court held that the federal Defense of Marriage Act was unconstitutional because it violated individual liberty, but did not rule that all state bans on gay marriage were unconstitutional. In his dissent in the case, United States v. Windsor, Scalia wrote that the majority opinion's logic would inevitably lead to the state bans being declared unconstitutional ... .

Scalia is right.

Consider also Scalia's dissent in Lawrence v. Texas (2003): "Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda (sic), by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. ... One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is 'an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.'"

How ghastly, criminalization that is.

Moral opprobrium is indeed an evolving concept now attaching to jurisprudence, as Justice Scalia may not have anticipated.

Seventy percent of American cannot legally marry. There are 76 Countries where anti-gay laws are as bad as or worse than Russia’s. Mauritania is one of four African countries where same-sex relations between men can result in the death penalty. Homosexuality is illegal in 41 out of 53 Commonwealth countries.

As the Toronto Globe and Mail writes, "The global struggle for sexual justice for all has come extraordinarily far in a short time, but it's far from over. "(Robert Leckey. December 13, 2013)

Advise reading Judge Posner's new book Reflections on Judging (Harvard University Press, 2013) and checking out Posner's book for holiday fun as Posner devotes part of Reflections eviscerating Scalia's "textualism" or "originalism." Posner ridicules Scalia's approach as 'gotcha' jurisprudence (p. 182) in Posner's turgid yet acerbic style.

Not just Judge Shelby and Scalia has taken to effectively using Scalia at Scalia expense.


Consider Scalia in Lawrence v. Texas (2003), in his own bizarre dissent:

Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda (sic), by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.

Moral opprobrium is indeed an evolving concept morphing into jurisprudence, as Justice Scalia feared.


Consider Laurence H. Tribe's piece on Hollingworth v. Perry (2013). Tribe writes: "But Justice Scalia – in a portion of his dissent that Chief Justice Roberts conspicuously declined to join – couldn’t resist the temptation to use the occasion to insult the Court’s majority, and Justice Kennedy in particular, in essentially ad hominem (and ad feminem) terms. I write this comment principally to highlight the extraordinary character of this particularly vitriolic and internally inconsistent dissent." (Tribe. DOMA, Prop 8, and Justice Scalia’s intemperate dissent. June 26th; SCOTUSBlog)

More than 30 states, including Wisconsin, have passed amendments or laws restricting marriage to a man and a woman.

The Supreme Court has not ruled on whether state constitutional amendments limiting marriage to a man and a woman are inherently unconstitutional under the 14th Amendment. That challenge may reach the Supreme Court in 2016.

And Scalia would be only to happy to follow his Party as it blasts away at gays, blacks, Latinos and whichever group the Republicans can find to blame for America's challenges.

Willful Ignorance, Complexity and Corruption in Wisconsin Voter ID Ruling

One wonders since the new DMV service center policy is cited in Ruthelle Frank v. Scott Walker (14-2058), as is the Milwaukee Branch of NAACP v. Walker ruling, does the record also include One Wisconsin Now's Amicus Curiae Brief detailing how "Obtaining a State-Issued ID Is Difficult, Inconvenient, Impracticable, and –For Some –Insurmountable," and the lack of "Wisconsin’s DMV Inaccessibility Creates A Voter Access Issue."
 
The brief is worth checking out and certainly should be included in an emergency appeal and should be a topic of federal court deliberation.
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Judge Richard Posner of the Court of Appeals for the Seventh Circuit is the author of the Crawford v. Marion County Election Board  opinion (2007) [one year later came a U.S. Supreme Court confused landmark case with a plurality opinion authored by Justice Stevens (since retracted) from which the order from the Seventh Circuit's panel used to justify its extraordinary ruling changing the Wisconsin voting landscape some 50 days out from Election Day.]

It is appropriate that Judge Posner, a leading public intellectual and legal scholar, notes in his Reflections on Judging (Harvard University Press. 2013) that the educational background of fellow Justices and judges reflects the belief that law is a humanity rather than a science or at least a social science. (p. 81)

Posner, appointed to the bench in 1981, has turned into the conscience of the Seventh Circuit, and conscience and fidelity to the principles animating the dispassionate and fair deliberation of the law is missing from Frank v. Walker and its companion case.

"We are very disappointed in the damaging decision to lift the injunction against [Wisconsin] Voter ID, which will cause chaos and disruption for voters and elections workers for the November election.  The state has not demonstrated it is prepared to make this new ID scheme work.  The new procedures were presented at the last second and it is unclear whether or how they will work in time to ensure that eligible voters are actually able to vote. It has not demonstrated how it will train 1,852 municipal clerks and tens of thousands of poll workers, as well as notifying voters of the new rules. We will continue to review and closely monitor this decision," writes Chris Ahmuty, ACLU of Wisconsin Executive Director.

Wisconsin's Act 23 is one of the most restrictive Republican-authored voter obstruction state laws exceeded perhaps only by Texas and North Carolina, all three of which are intended to block as many disfavored citizens as possible from casting votes, with an emphasis on ethnic minorities, most of whom in Wisconsin reside in one county.

Clayton Kawski, an assistant Wisconsin attorney general, sounded more like a politician of the likes of Scott Walker and the odious Rep. James Sensenbrenner (R-White People) than a jurist in oral arguments, using the GOP catch phrase "common sense" numerous times to justify the constitutionality of this clearly unconstitutional law, (Davey, NYT) even citing for the panel the perceived popularity of Act 23 as a polling data point.

"The district court [Judge Lynn Adelman] held the state law invalid, and enjoined its implementation, even though it is materially identical to Indiana’s photo ID statute, which the Supreme Court held valid in Crawford v. Marion County Election Board, 553 U.S. 181 (2008)," reads yesterday's appellate order.

Materially identical?

This is ironic language to use for the Wisconsin law vis a vis Indiana's.

Last year in U.S. district court Wisconsin featured a long trial at which was presented a mountain of testimony and social scientific evidence demonstrating that Wisconsin's photo voter ID law would disenfranchise potentially 100,000s, while also demonstrating that only one case of voter impersonation voter fraud occurred out of 10s of Millions of votes cast going back to 2004.

No such trial took place in Indiana in 2007-08, yet the appellate panel finds as fact that the two state laws are materially identical; based on what evidence, what examination, what trial?

Judge Posner commenting on the challenge of complexity in federal litigation notes that a careful examination of evidence is imperative if the rights of citizens under law are to be realized by a judiciary that often misses the mark.

"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)

Notes Posner, "Consider what judges do when they don't understand the activity from which a case before them has arisen. They duck, bluff, weave, change the subject." (pp 85-86)

This is precisely what the appellate panel has done, writing: "After the district court’s decision, the Supreme Court of Wisconsin revised the procedures to make it easier for persons who have difficulty affording any fees to obtain the birth certificates or other documentation needed under the law, or to have the need for documentation waived. Milwaukee Branch of NAACP v. Walker, 2014 WI 98 (July 31, 2014). This reduces the likelihood of irreparable injury, and it also changes the balance of equities and thus the propriety of federal injunctive relief. The panel has concluded that the state’s probability of success on the merits of this appeal is sufficiently great that the state should be allowed to implement its law, pending further order of this court."

Actually, the new policy is not in effect until Monday and the sophistication of DMV clerk, the dearth of DMV centers in Wisconsin and the ability to travel to DMV centers are of no apparent concern to Easterbrook, Sykes and Tinder.

Acting as an obtuse judiciary, Judges Easterbrook, Sykes and Tinder are at best willfully ignorant:

Notes Judge Adelman in his April 2014 opinion that is meticulously crafted:

"Although it is true that those individuals who already have IDs must have at one time experienced the burdens and inconveniences of obtaining them (and must continue to experience the burdens and inconveniences of keeping their IDs valid), the photo ID requirement creates a unique barrier for those who would not obtain a photo ID but for Act 23." (pp 22-23)

The three judges are redolent of George W. Bush during Hurricane Katrina:

'Why don't you just hop in the SUV and take your family and make sure everyone has their IDs in order and the DMV will help you now' echoes George W. Bush's inability to understand why families didn't evacuate when the approach of Katrina gave them days warning in 2005. [In a historical irony, Bush's perceived indifference to African Americans led Karl Rove to push Congress into a 25-year extension of the Voting Rights Act, which proving too beneficial to African Americans and Latinos' voting so it had to be gutted by the GOP judiciary on the U.S. Supreme Court.]

The socioeconomic reality and the new precondition to vote imposed by Act 23 escapes Easterbrook, Sykes and Tinder who can only see a similarity in the text of state laws, but remain oblivious to the reality of the lives—though presented in the record with a huge body of evidence whom the law serves.

I have to believe Easterbrook is willfully ignorant and Sykes and Tinder are corrupt.

In the Easterbrook-Sykes-Tinder order, the panel cites Milwaukee Branch of NAACP v. Walker, 2014 WI 98 (July 31, 2014).

It is worth noting that "... Wisconsin will still have only one DMV location that is open during the weekend, on Madison's west side. By comparison, Indiana has 124 DMV centers that are open during the weekend." (Roller, Milwaukee Journal-Sentinel)

One wonders since the new DMV service center policy is cited; as is the Milwaukee Branch of NAACP v. Walker ruling, does the record also include One Wisconsin Now's Amicus Curiae Brief detailing how "Obtaining a State-Issued ID Is Difficult, Inconvenient, Impracticable, and –For Some –Insurmountable." and the lack of "Wisconsin’s DMV Inaccessibility Creates A Voter Access Issue."

The brief is worth checking out and certainly should be included in an emergency appeal and should be a topic of federal court deliberation.

Judge Richard Posner Quits Bench, Hits "Reactionary Beasts" as Unfaithful to Constitution

The sudden news this month that an intellectual is resigning from the Court of Appeals for the Seventh Circuit should cause alarm about the future of liberty claims in federal litigation.

Judge Richard Posner announced his resignation as the federal judiciary branch is populated by ever-more brazen rightwingers and politicians.

Notes Adam Liptak in the New York Times this morning in a column on Posner's resignation:

In emphasizing social utility over, say, principles of fairness and equality, he gained a reputation as a cold and calculating conservative.

That changed over time, and his recent opinions on voter ID laws, abortion, same-sex marriage and workplace discrimination based on sexual orientation have been decidedly liberal.

Liberal as in recognizing the Constitutional rights of American citizens that used to guide consideration of litigation in the federal courts.

New York Times is worth a read this morning on the career and influence of this public intellectual.

Despite the self-importance with which the federal judiciary, and most judges, conduct themselves, Posner casts most judges as anti-intellectual, especially rightwingers of whom he says, "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."