Truth And Injudicious Statements

Jeff Gamso tackles the attack on 7th Circuit Judge Richard Posner by Charles Lane in the Washington Post. Judge Posner, who isn’t exactly shy about speaking off the bench, let loose that his decision in a controversial 2007 case involving Indiana’s voter ID law was wrong.

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.

In his inimitable way, Gamso sums up the problem succinctly:

Note, please, that Lane’s complaint isn’t that Posner fucked up in 2007. Nor is it that Posner has concluded that he fucked up in 2007. Rather, it’s that he’s admitted it.

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.

Ah, yes. Judges are to be impartial. And if they aren’t, they’re to pretend that they are. They must look Olympian, hide behind their robes. Lest we learn . . . .

Lane’s point, that post hoc extrajudicial statements can feed into the cynicism that courts are unworthy of respect, isn’t entirely wrong.  As is well understood, the judicial branch of government is the least dangerous, not because it can’t issue orders that are horrifically damaging, but because it lacks an army to back them up or the purse strings to pay for compliance.

The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

The only weapon of the third branch of government is respect for its judgment. If the integrity of its judgment is impaired, then it is unarmed. Its mandates can be ignored with impunity. Its pontifications will be the thing of ridicule.

But does Lane get it right when he castigates Judge Posner for coming out publicly and revealing that he erred?  The question can only be answered in the positive if the public’s respect for the judiciary is grounded in absolute perfection, Gamso’s Olympian ideal, that judges are gods on high who can do no wrong.

That horse has left the barn, which is why there are appellate courts, and then appellate courts after that.

Americans have an historic naiveté when it comes to the judiciary. We quote certain judges as if their utterances came from on high, beyond any mere mortal to dispute.  Usually, the quotes we love most are so vague as to be offered in support of either side of an argument, and invariably there will be another judge of stature who said the opposite.  And yet, we adore their words and hold them out as if they resolve every question.

Yet, respect comes from the knowledge that our judges aren’t gaming the system to get to results they prefer. Respect comes from honesty and sincerity, and that comes from being truthful, both to oneself and the public.  Judge Posner told the truth. That’s cause to rejoice, not complain.

Judges are human beings, and even the most revered judges are subject to doubt, to influences that may be less than laudatory, to error.  We should not demand perfection (whatever that may be) of them, but intellectual honesty and integrity in their decision-making. It’s the most we can expect of any human being.

On a side note, Judge Richard Kopf (whose name has appeared with some regularity around these parts lately) asks whether he is subject to the same criticism Lane leveled at Posner because of his having a blog, Hercules and the Umpire. He asks whether he has crossed the line into impropriety by being too open?

Gamso concludes that Judge Kopf has not.

The simple-minded answer is that he has not since he has not become a public intellectual nor has he announced that he was wrong on a major decision with political overtones.*  The more nuanced (and meaningful) answer is that he has not.

I agree, but for somewhat different reasons. As the foundation for respect in the judiciary isn’t agreement with every decision, but rather the belief that judges are sincere in their efforts to reach the correct decision, Judge Kopf’s frankness demonstrates that he has the integrity to hear, to consider, to deliberate upon the arguments for both sides. Not agree, but consider.

Reasonable people may differ as to the correct outcome, and the relative reasons for reaching that outcome.  While we each believe we’re right and anyone who disagrees is, by definition, wrong, thoughtful people will understand that it’s never quite that easy.  As Orin Kerr wrote:

Understanding of the law and confidence in one’s conclusions about it are inversely related.

I disagree with Orin quite often too, but respect the integrity of his thoughts. Judge Kopf has demonstrated the sincerity of his thoughts and the integrity he brings to his decision-making. That’s the foundation for respect for the judiciary.

It may be unpleasant to admit that judges aren’t perfect, that they don’t fit perfectly on pedestals, but it’s time for us to grow up and accept that they are humans.  To err is human. To be honest about it is divine.



6 comments on “Truth And Injudicious Statements

  1. David Sugerman

    Not the first time that Judge Posner has come out with a public pronouncement that he was wrong. He did so earlier with a book on the 2008 financial crisis in which he admitted to rethinking his views on economic regulation. Before that he was the darling of the neo-con and law and economics crowds because he was happy to cut breaks and exceptions to corporate actors so that they could avoid “ruinous liability.”

    As a consumer-side trial lawyer, I found his thinking and writings to be high-falutin’, intellectual, and goofy. I have to admit to taking pleasure inappropriately in his public revisions.

    That said, we are better off with his admissions that may lay the foundation for corrections of greviously bad decisions. Those who advocate for the never-admit-you-were-wrong posture undermine the best hopes of correcting errors. Bad idea.

    1. SHG Post author

      Always happy to provide you with an opportunity to take a gratuitous slap at Posner in the course of reaching your point.

  2. Jim Majkowski

    “Understanding of the law and confidence in one’s conclusions about it are inversely related.”

    I have seen this expressed before, with the proviso that any variable can be substituted for “the law.” As for permanence of opinion, the one of concrete’s description may be applicable.

    Thanks for your terrific work. I try never to miss it.

  3. Matt James

    Sometimes I think lawyers give ourselves too much credit over our sway over the public. I’d wager that the average American doesn’t know who Judge Posner is, much less be in a position to be disillusioned by such a comment. And when you’re talking about a fundamental erosion of judicial respect, you’re talking about the many, not the few. Personally, I think most people have and will continue a vague respect for the Federal judiciary (an opinion backed up by Gallup to those who buy into Gallup) until something more newsworthy happens.

    1. SHG Post author

      I suspect you’re right. But the downside is that respect for the judiciary is then derived from the handful of opinions that are widely disseminated, and they are invariably controversial ones and mostly disseminated by those who hate them, and spin the decisions to make them look terrible.

      The flip side is that most non-lawyers lack the desire to read decisions, and if they do, really comprehend the reasoning behind them. It’s a no win situation, so we’re left to deal with how lawyers perceive the integrity of the courts to the extent anyone has any rational basis to show respect or not.

  4. Pingback: Too Much Transparency | Simple Justice

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