Too Much Transparency

When Charles Lane beat up on 7th Circuit  Judge Richard Posner for talking out of school, his complaint fell flat.

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.

But Judge Posner, apparently smarting from Lane’s spanking, couldn’t leave well enough alone.

But in the latest twist, Judge Posner now says he never disavowed the 2007 opinion he wrote for the 7th U.S. Circuit Court of Appeals in Crawford v. Marion County Elections Board. Writing in the New Republic, he says:

I did not say that my decision, and the Supreme Court’s decision affirming it (written, be it noted, by the notably liberal Justice Stevens), were wrong, only that, in common with many other judges, I could not be confident that it was right, since I am one of the judges who doesn’t understand the electoral process sufficiently well to be able to gauge the consequences of decisions dealing with that process.

He says the point he was trying to make in his new book, “Reflections on Judging”, was that “in many cases judges can’t have any confidence in the soundness of their decisions if they do not have empirical data concerning the likely consequences of deciding the case one way rather than another.”

Apparently there is a point where a judge can be too transparent, and Posner found it. The problem is that his subsequent spin isn’t nearly as convincing as it would have been had he not given an interview to Mike Sacks at HuffPo Live, where:

The reporter read the passage to the judge and asked him if he and the court had gotten the case wrong. “Yes, absolutely,” Judge Posner replied. Judge Posner doesn’t mention the interview in his New Republic piece.

Protip: If you’re going to try to engage in post hoc spin, Judge, make sure you didn’t say the exact opposite in a video interview.  While there may be nothing wrong with a judge openly admitting his human foibles, that he isn’t perfect, undermining your credibility in the process is generally frowned upon.

And as long as we’re talking about Judge Posner, his just-released opinion in Jackson v. Pollion offers some curious thoughts as well on the subject of judges forced to make decisions in the absence of what they deem insufficient empirical evidence:

This lapse is worth noting because it is indicative of a widespread, and increasingly troublesome, discomfort among lawyers and judges confronted by a scientific or other technological issue. “As a general matter, lawyers and science don’t mix.” Peter Lee, “Patent Law and the Two Cultures,” 120 Yale L.J. 2, 4 (2010).

The discomfort of the legal profession, including the judiciary, with science and technology is not a new phenomenon. Innumerable are the lawyers who explain that they picked law over a technical field because they have a “math block”—“law students as a group, seem peculiarly averse to math and science.” David L. Faigman, et al., Modern Scientific Evidence: Standards, Statistics, and Research Methods v (2008 student ed.). But it’s increasingly concerning, because of the extraordinary rate of scientific and other technological advances that figure increasingly in litigation.

Not to be unkind about it, but he’s being a little too disingenuous in his complaint.  How many times have lawyers sought to put real experts on the witness stand to explain sophisticated concepts or scientific advancements, only to have the judge wave his hand and say “everybody already knows how it happens”?

With technology, experts are forced to dumb down explanations to the point of absurdity to make it comprehensible to Luddite judges, who then analogize the rule of law to bootleggers and buggies.  This was glaringly apparent in the Andrew “Weev” Auernheimer appeal, where amici sought to simplify it to the point of absurdity while the government played on the judges’ ignorance of technology.

The lack of understanding of scientific and technical expertise has been a monumental problem for decades, and one of the most frustrating aspects of the law has been trying to get judges to stop embracing junk science because it’s what they always did and start looking at it empirically.  And yet Judge Posner blames lawyers for not being good at math?

Technology is a part of everyday existence for lawyers, and while there are certainly lawyers who refuse to learn anything about it, there are similarly lawyers who embrace science and technology and seek to use it in court to bring some small amount of reality to the fictions that appellate judges adore.

Don’t blame us for judges’ continued hiding under their bench whenever science or technology is mentioned.  We can’t use it when judges won’t let us, and I don’t see Judge Posner chewing out district court judges for slapping down every effort to bring a little reality into the courtroom.

While it’s good to know that Judge Posner shares, at least to the extent that serves his interests, a concern about the lack of empiricism in the courtroom, and to that extent his transparency serves to enhance our sense of integrity in the legal system in that the courts may be coming around, it’s unfortunate that at the same time, he cut his legs off by backtracking and spinning when butthurt got the better of him.

So while I still maintain that a certain amount of transparency is good and provides a positive benefit, there is a line beyond which a judge shouldn’t go.  This was it, and the lesson comes at Judge Posner’s expense.

4 comments on “Too Much Transparency

  1. Marc R

    He shouldn’t have initially said the Court got it wrong? Or he shouldn’t have tried to mitigate his “transparency” with the 2nd (opposite) statement?

    1. SHG Post author

      If he didn’t want to get caught in the middle of his two contradictory statements, he shouldn’t have said one of them. Or to put it in a way that is more useful, he should stick with the truth and cut the spin.

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