Can judges be too public?

Charles Lane (an editorial writer who attended Yale Law school) has written a piece in the Washington Post that deserves reading. A reader, who is a lawyer, called my attention to the article, and I thank the reader for doing so.

The piece criticizes Judge Posner for being too public. While I sure as hell don’t compare myself to Judge Posner in any form or fashion, I would appreciate it if readers would review Mr. Lane’s piece about Judge Posner’s penchant for being public and apply Lane’s critique to this blog. After that, I would welcome hearing from readers about what they think. Truly, I am not trying to gin up discussion. Since this blogging gig is new to me, I am sincerely interested in what others think about the important points made by Mr. Lane.


15 responses

  1. Your Honor:

    I’m glad you found this piece worthy of posting. My own view as a practicing trial lawyer, for what it’s worth, is that your and Judge Posner’s efforts at transparency concerning the roles of judges and judging are an educational peek behind the curtain. While I sometimes disagree with some (but, so far, not many) of your views, your candor is a breath of fresh air. Sunlight, as they say, is the best disinfectant.

  2. Interesting question. I think there is littl;e comparison between writing an article recanting a prior judicial opinion and whatever you could characterize it is that you are doing here, Judge Kopf. Nevertheless, people take everything someone in a public position writes and scrutinizes it with a microscope, analyze what they see, magnify it further, and declare it’s identity as if they are able to see the DNA of the writer within the writing. I think you are safe as long as you don’t bleed too much into the written words, but the readers may still find, or attempt to draw, blood from your words. Obviously, you get a great deal of enjoyment out of writing this blog, so I would not take the fun out of it for you or suggest you should do so yourself. The lines you have drawn in my limited reading seem about correct.

  3. Lane’s critique is made from the perspective of one who has, from what I can glean of his biography, never appeared as a lawyer in court. His rejection of the value to litigants of knowing the mind of the judges in front of whom they appear is uninformed by practice. I can’t think of any lawyer worth a damn who appears in front of a new judge without trying to get a sense of where the judge comes from generally, and what he’s said about similar cases, specifically.

    Some judges, like Posner, are terribly opinionated. Too much so, in my opinion. But at least they have the decency to let us know that, rather than be perplexed by results we could never see coming. To suggest that by publicly rethinking a decision in light of what he has learned since he has “crossed the line” is just silly. It is of a piece with those who obsess about finality over justice as values of our legal system.

    Sure, as a lawyer, I’d be pretty well stung if Posner said he decided a case wrong because I presented the facts wrong. It’s a bit of a cheap shot and absolves Posner of any real responsibility for having gotten voter ID wrong. Now, if a litigant tried to challenge the same voter ID provision he’s already ruled against, I think that on the basis of these statements Posner might need to recuse himself. But I don’t see why his opinions should be cast in amber and buried beneath the earth never to be revisited. Perhaps timelines would be helpful for such things, but then the vaunted flexibility of the judicial code of conduct would be lost.

    All of this is another way of saying: We can’t have it [anything] both ways. We will always try.

  4. Judges Posner, Scalia, and Kozinski have said more to impugn the integrity of the American judiciary than any other judge in history, because they reveal the secrets of judicial freemasonry. Together with the late Judge Bork, they paint the judiciary as the scum of the Earth: men no sane father would ever let their daughters date. And the worst part for our intrepid Men In Black is that they say it with a considerable wealth of record support.

    Since I don’t get to go to your confabs, Judge Kopf, I must ask how well those men are received.

    By way of example, judges will always rule in favor of fellow judges whenever they can, see e.g., Pierson v. Ray, 386 U.S. 547, 587-67 (1967) (Douglas, J., dissenting) (searching examination of the legislative history of the Ku Klux Klan Act, indicating that Congress intended that judges may be held liable in tort for violations), in what Judge Posner has rightly describes as an application of Bayesian decision theory: If it costs nothing to be wrong, you have no compelling incentive to get it right. Richard A. Posner, How Judges Think 11, 67-8 (Harv. U. Press 2008); see generally., (PowerPoint explaining the theory).

    In a jury trial, jurors have an incentive to get it right: Tomorrow, they could be in the dock. But in a case involving the power and perquisites of the judiciary, judges have a similar incentive to put their fingers on the scales of justice to benefit their colleagues, The why is obvious: As Senior Judge Kane of the District of Colorado related to the Washington Post, one of his colleagues
    said: “’John, think about it. The next time it could be you or me. We’ve got to stick together.’ ” Ronald Rotunda, The Courts Need This Watchdog, Wash. Post, Dec. 21, 2006, A-29; see also, Cleavinger v. Saxner, 474 U.S. 193, 204 (1985) (re: “guild favoritism”). When a judge rules in favor of colleagues, s/he makes a deposit into what Harvard’s Alan Dershowitz calls “the favor bank.” Alan Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000 116 (2001); Stephen Breyer, et al., Implementation of the Judicial Conduct and Disability Act of 1980: A Report to the Chief Justice (Sept. 2006) at 1. And if it costs you nothing to violate your oath of office, the Bayesian decision model says you will do it ten times out of ten.

    If Judge Miller is insulted when I say it, one can only wonder what he has to say to Judge Posner, who is the primary reason that I CAN say it. I’d love to be a fly on the wall in the bathroom where they have that little conversation….

  5. If I had had the good sense to tail Judge Nottingham, I would have learned that he was taking bribes to bang his high-class hookers. But judges tend to have hissy fits when people publish their home addresses:

    ‘What began as law school class exercise in privacy has led an apparently upset Supreme Court Justice Antonin Scalia to criticize a law professor for giving a lesson in how “what is legal may also be quite irresponsible.”

    Joel Reidenberg, a Fordham University law school professor, assigned a group project to students in his information privacy law course: Find any publicly available information on the notoriously private Scalia and compile it into a “dossier.” The class came up with 15 pages of information on the Justice, including his home phone number, his food preferences, his wife’s personal e-mail address and photos of his grandchildren, Reidenberg said.”

    Scott Michels, Law Students Collect Personal Info on Justice Scalia,, May 1, 2009, at

    If I were to counsel a litigant with unlimited resources, I would advise him to hire a PI to go through his judge’s life with an electron microscope. That was how Nottingham was outed.

  6. Posner’s opinions regarding judicature are not so much revealing as they are damning. I’m amazed he doesn’t get lynched by his own colleagues. 🙂

  7. I very much enjoy the chance to listen to experienced minds on complex and difficult subjects. This site allows me insight into a world that I do not have access to, but that I would love to have access to someday. It also shows something that few people ever see: the private life of a federal judge.

    As to the article, I feel that Mr. Lane is informative, but misses a key point. The judiciary are public servants, but they are trusted with a unique degree of independence. It is perfectly possible to criticize a judge, but as far as I can tell, the only organizations that may actually discipline a judge are in the federal judiciary and the United States Senate. Judge Posner holds a view that Mr. Lane does not like, but neither Posner nor any other judge is directly responsible to Mr. Lane, nor the public they serve, despite his implication in the final paragraph. They are responsible for upholding the law of the land, a decidedly anti-majoritarian viewpoint.

    This independence is an essential value of our judiciary. Often, I think that people in the media (given the need to sell papers) forget that the majority is not a good protector of rights. The implication that he is responsible to the public requires the assumption that he must serve at our wishes. This is simply not true. Judges serve society by upholding the law, not specific populations of people.

    I personally love this website and enjoy the chance to see how things run “behind the curtain.”

  8. I think it’s possible for judges to be too public, but I don’t think either your blog posts or Judge Posner’s statement (or his other writings) cross the line. As to Posner, Supreme Court justices have famously changed their minds on contentious legal issues in the context of a subsequent opinion, and I don’t see a big difference between that and what Judge Posner later said about the voter ID decision. I think judges have a responsibility to speak out on issues of law that they see as important based on their courtroom experience. And it’s nice to know some of them can admit when they think they’ve made mistakes. There’s too much of a “black box” aura surrounding judging, and I think more sunlight would result in better litigated cases and thus better results. As for your blog, I have added it to my “favorites” bar and check it several times a week. And I thank you for reprinting the version of the Loren Eiseley poem you read in memory of Judge Mues. After reading it, I went on and bought used copies of several of Eiseley’s poem collections and other writings. Keep it up!

  9. the Indiana law was of “a type…now widely regarded as a means of voter suppression rather than of fraud prevention.”

    Widely regarded by whom, exactly? I haven’t read Judge Posner’s book; maybe he says. But none of the reviews I’ve seen say. That’s an interesting elision by the reviewers.

    That aside to the side, I take issue with Lane’s underlying premises. He says, Posner’s casual mea culpa is improper behavior for a sitting federal judge.

    Which is exactly backward. Everyone who screws up should admit it and take corrective action. Nor judge nor any other man is above fundamental morality.

    He says 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.

    He’s not writing here a sapientia banco; he’s writing, as anyone paying attention can see, as a private citizen, and like any private citizen, it’s solely a sapientia umbilicum. As such, there’s no possible intervention here–anymore than my writings amount to an intervention in a live political, and legal, issue.

    The rest of Lane’s argument fails from his false premises.

    You asked, also, how Lane’s critique applies to your blog. It doesn’t–those false premises.

    Further, you’ve made plain, both in your About This Blog page and repeatedly through your posts and responses to our blathers, that you’re not going to discuss things that might come before you–someday. And you’ve held to it. This Texas layman says to keep doing what you’re doing, head high, and proudly.

    In fine, what Mr Bourgeois said at the top of this thread.

    In final fine, Lane closed his piece with 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.

    Again, this is just wrong. I expect judges, especially, to be thinking men and women–not bureaucrats.

    Eric Hines

  10. Myself not being a person skilled in the matters of law, I do enjoy making my way through legal essays, such as yours. What has Lane to say? Ok, he has some background on the educational side of things. That, for me, means he knows enough to be dangerous; the danger, of course, to those that are unsuspecting. To proof text Kant was my first indication that he’s not reliable, and what exactly are his qualifications to judge the ethical position of a standing judge? I can find none; wiki is not gratuitous on his behalf. To me,once again the media prove the cheapness of its form of reporting. Wasn’t this kind of journalism once considered ‘yellow’ by some standard? But now I have trespassed too. “Do you cross the boundary,” you ask? I am not qualified to answer that. It is my earnest hope though, that you have not crossed it and that you will continue to blog, that I may suffer to try to understand a little bit more of how things work. While I have my doubts about the effectiveness of the first two arms of government, I remain committed to supporting the judiciary. Thank you for your work, and for your blog. Frank

  11. Frank,

    It may seem like a small thing, that is, the statement that you “remain committed to supporting the judiciary.” But it isn’t! It is a big thing, and I really appreciate that you took the time to say it.

    Thank you. All the best.


  12. Mr. Lane writes of the Code of Conduct, “Not the clearest line, to be sure.” No kidding, huh?! The things judges say and do and get away with… But to say that Judge Posner has “finally crossed [the line]” through a public display of self-doubt or even (gasp!) objectivity is really to lose sight of what the legal system is all about. It’s a good thing when judges come with a solid dose of self-consciousness and perspective. Frankly, the system depends on it.

    But Mr. Lane’s article suffers from three main flaws:

    First, he sees public commentary by judges as somehow unsavory (“Posner’s casual mea culpa is improper behavior for a sitting federal judge”). How is the alternative – where judges would publicly stick to untenable positions just because – any better?

    Second, he caricatures “Posner ‘the premier American public intellectual’ of our time.” Well, only those who don’t how to get dirty or how to use words think “intellectual” is a dirty word. We desperately need judges to be public intellectuals. In fact, we desperately need lots of folks to be public intellectuals, or even just intellectual (or even just public). It’s a dark world when the deciders are stupid and sheltered.

    Finally, Mr. Lane sees Judge Posner’s comments as somehow unethical, writing that his comments are “just not the sort of transparency traditionally associated with a legitimate judicial process.” So what, we’re supposed to stick to reading the tea leaves of judicial opinions and never know the men and women writing them? If a citizen can’t imagine having a beer with the judge, then a citizen can’t imagine trusting his life to the judge. Besides, isn’t Mr. Lane questioning the very existence of “legitimate judicial process” in his commentary?

    Mr. Lane just has it wrong, and it stinks.

    As for you Judge Kopf, please go full Miley Cyrus: You can’t stop and you won’t stop. Add in some Gollum too. Give it to us, raw and wriggling.

  13. Rebecca,

    I am very interested. The last couple of paragraphs are particularly significant to me. Thanks for flagging the article. Whether you agree with him or not, isn’t Posner a marvel?

    All the best.


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