The ever-provocative federal appeals court Judge Richard A. Posner has made news again, this time by voicing second thoughts about his 2007 decision to uphold Indiana’s voter ID law.
The ruling was later affirmed by a 6 to 3 vote of the Supreme Court. But Posner says, in a new book, that the Indiana law was of “a type ... now widely regarded as a means of voter suppression rather than of fraud prevention.” In recent interviews, the judge chalked up his mistake to the plaintiff’s lawyers’ failure to present “strong indications that requiring additional voter identification would actually disenfranchise people entitled to vote.”
Some critics of voter ID laws may revel in Posner’s confession. I wish he’d kept his mouth shut. Not because I’m a fan of voter ID laws — I’m not — but because Posner’s casual mea culpa is improper behavior for a sitting federal judge.
The Code of Conduct for United States Judges discourages members of the bench from opining on the issues of the day. They may “speak, write, lecture, and teach on both law-related and nonlegal subjects,” as long as that doesn’t “detract from the dignity of the judge’s office” or “reflect adversely on the judge’s impartiality,” among other caveats.
Not the clearest line, to be sure — it has proved flexible enough to accommodate Posner’s vast opus, which, over the years, has included dozens of books and articles on subjects ranging from antitrust to sex, as well as a popular blog. HuffPost Live calls Posner “the premier American public intellectual” of our time.
Yet however blurry that line may be, by publicly recanting one of his decisions while still on the bench, Posner has finally crossed it.
His comments amount to intervention in a live political, and legal, issue, cloaked — whether or not he intends it — in the authority of his judicial office. Indeed, his comments carry the authority of someone who previously considered the matter in court and has now switched sides. It’s as if Harry Blackmun, the author of Roe v. Wade, came out against abortion rights while still a justice.
It doesn’t help matters that Posner’s confession of error contained a gratuitous slap at the losing lawyers or that it hinged on a vague notion of how the Indiana law, and others like it, are now “regarded.” As it happens, opinion polls consistently show that voter ID laws are popular among voters of both parties.
When I presented this data to Posner, he replied by email, “That’s not my impression. I believe that all but one of the photo ID identification laws were passed by state legislatures that are Republican controlled.”
He and I could debate this forever. But that’s just the point — judges shouldn’t engage in the hurly-burly of political argument. It fosters the impression, corrosive to the rule of law, that there is no difference between a judicial process and a legislative one.
Posner isn’t overly troubled by such considerations. “I would like to see more realism about judges,” he said. Their rulings are not Olympian pronouncements but the products of factors ranging from black-letter law to personal opinion. He said he sees no reason for judges to be “bashful” about admitting mistakes.
This is a standard theme for Posner. Of course, it poses a contradiction: If it is realistic to be skeptical about judges’ capacity for deciding cases objectively, why should we trust their subsequent claims of error?
Posnerian realism is not quite the insight that he seems to think it is. As a wise philosopher said centuries ago, “Out of the crooked timber of humanity, no straight thing was ever made.” And that includes the rule of law.
I suppose Posner’s constant commentary makes his court more transparent, in the sense that it gives lawyers and potential litigants more information about his thinking. It’s just not the sort of transparency traditionally associated with a legitimate judicial process.
Would federal courts enjoy a better reputation if every judge spouted his views as freely as Posner does? A worse reputation? Before you answer, consider this less-publicized selection from his recent comments: “I don’t really share the widespread concern with surveillance by the NSA,” he told the Huffington Post. “If they want to read my emails, they’re welcome.”
The best judges maximize their impartiality, actual and perceived, even at the cost of self-restraint in their public statements. They do so because the public is entitled to a judicial process that earnestly aspires to fairness and objectivity, however elusive those goals might be. They understand that there is a fine line between realism and cynicism.
They understand that the American people give them $185,000 a year, plus life tenure, power and prestige, to be public servants — not public intellectuals.