In this instance, Judge Posner lied

Let’s face it, I don’t belong in the same sentence as Judge Richard Posner. I regard Posner as a giant. I respect him and wish he sat on the Supreme Court. He is known for speaking the raw truth, and I highly respect him for that trait. But he is wrong as hell to write in Slate* that the Chief Justice’s dissent in the gay marriage case was heartless and furthered the cause of bigotry. It is a damnable lie.

The Chief Justice ends his dissent in the gay marriage case with these words:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

Obergefell v. Hodges,  576 U. S. ____ (2015), slip op. at p. 29 of dissent.

Those are not the words of a cold and heartless and bigoted man. Indeed, if anything the dissent reflects a sadness that the Chief Justice cannot join the majority.**

Paul Barrett said it best when trying to understand the Chief Justice and his views in the Obamacare and gay marriage cases:

On Thursday, Chief Justice John Roberts drew fierce conservative fire for upholding Obamacare (again). A hero to political liberals for 24 hours, Roberts seemingly flipped positions on Friday to write the lead dissent opposing the nationwide legalization of gay marriage. What’s with this guy?

Actually, his opinions in the marquee cases of the 2014-2015 Supreme Court term aren’t difficult to reconcile. Agree or disagree with Roberts on the merits, one can easily discern an essentially restrained jurist concerned with promoting the machinery of democracy and the reputation of the highest court in the land.

Paul Barrett, Why John Roberts Upheld Obamacare but Dissented on Gay Marriage
He sides with liberals one day, conservatives the next. What gives?, Bloomberg Business (June 26, 2015).

No heartlessness. No bigotry. Instead, as Barrett stresses, “Roberts was notably gracious toward the gay couples who challenged state same-sex marriage bans.”

Posner’s assertion that Chief Robert’s dissent reflects a cold heart plus bigotry is a vicious lie–and Posner knows it. Why he lied in the Slate article is a mystery.

RGK

*H/T How Appealing.

**I continue to be enraged by Judge Sutton’s decision. He unnecessarily forced the Supreme Court to take this case. In doing so, Sutton harmed the Court as an institution. He should have cared more about the legitimacy of the Supreme Court than he cared about his idiosyncratic beliefs that were shared by no one else in the other Circuits.

How do federal Circuit Judges manage their staffs?

For a short but utterly fascinating article that describes the different models used by federal Circuit Judges to manage their staffs, see G. Mitu Gulati and Richard A. Posner*, The Management of Staff by Federal Court of Appeals Judges, U of Chicago, Public Law Working Paper No. 531 (April 5, 2015) (the entire article is free by download). The abstract describes the thrust of the article this way:

Federal court of appeals judges have staffs consisting usually of a secretary and four law clerks; some judges have interns or externs or both (law students working part time). These staffs are essential, given judicial workloads and judges’ limitations. Yet not much is known about how the judges manage their staffs. Each judge knows of course, but judges rarely exchange information about staff management. Nor is there, to our knowledge, a literature that explains and evaluates the varieties of staff management by federal court of appeals judges. This article aims to fill that gap. It is based on interviews, some in person, most by telephone, of more than 70 judges, chosen mainly at random and covering almost all of the thirteen federal courts of appeals.

It would great to hear from former law clerks who served a Court of Appeals judge. Please feel free to comment anonymously. Of course, the thoughts of others are welcome too.

RGK

*Judge Posner is a national treasure even if he only likes his family and his cat.

H/T: How Appealing.

“Afterword: Posner at 75 — ‘It’s My Job.'”

Posner-720x340

I have followed Professor Ronald K.L. Collins’ posts on Judge Posner and urged you, the readers, to do so too. Collins’ last post is up, and to my mind it is the best and most informative. If you haven’t read any of the other posts, you must read this last one.

collins

Professor Collins’ skills as a writer, as an analyst of the human condition, as one intimately familiar with the great literature that illuminates this veil of tears, as a wily interrogator of an elusive witness and as a worthy interlocutor of Judge Posner are unmatched. Collins is an intellectual wonder just like his subject.

To understand Posner, consider this from Collins. Posner does what he does because: “‘It’s my job.'” Nothing more complex than that simple description except, that is, if you have ever read Albert Camus.

In prettier words, “‘I laid my heart open to the benign indifference of the universe. – Albert Camus (1942).'” I suggest an additional explanation from Camus apropos of Posner. “The struggle itself towards the heights is enough to fill a man’s heart. One must imagine Sisyphus happy.” Albert Camus, The Myth of Sisyphus and Other Essays.

Or, as Posner might say as he strokes his cat, “Whatever.”

RGK

Posner on Case Workloads & Making Judges Work Harder

Professor Collins has another post in his series on Judge Posner entitled Posner on Case Workloads & Making Judges Work Harder that you ought to read. In general, Posner thinks that judges don’t work hard enough. Specifically, in this post, Posner is described putting questions to a lawyer from the bench in a real case about the workload of Administrative Law Judges in the Social Security Administration.* The exchange between counsel and the judge are interesting.

I have previously written about the work of the SSA. The nearly one million case backlog is scandalous.  But I don’t think that the fault is with the ALJs. Unlike Judge Posner, I think ALJs in the Social Security system have so many cases that they can’t do their jobs very well, although most of them in my experience try hard.**

Whatever one thinks of the SSA and the dispute it has with the ALJs, Posner’s hard-headed views about the workload of judges is refreshing. Those views are worth considering, and Professor Collin’s piece gives you that opportunity. By the way, I would be very interested in hearing from those lawyers who have social security disability practices about whether they think ALJs have too many cases.

RGK

* According to Professor Collins,

The Plaintiffs were members of the Association of Administrative Law Judges (all administrative law judges). They filed a complaint contesting a Benchmarks and Directive issued by the Social Security Administration (SSA) imposing an agency-wide requirement that SSA administrative law judges (ALJ) decide 500-700 cases per year. The ALJs alleged that SSA had imposed an illegal quota on them and thus violated their right to decisional independence under the Administrative Procedures Act. The District Court granted the Defendant’s motion to dismiss on the grounds that it lacked subject matter jurisdiction.

**Remember that federal district judges review SSA appeals from denial of benefits. At least in my chambers, SSA appeals are among our least favorite line of work. See here.

H/t How Appealing.

Posner on same-sex marriage

That Judge Posner has changed his mind on the same-sex marriage question is only slightly less dramatic than if the Pope decided that the Church had been too tough on Satan. Less bombastically, Posner’s change of position was a sea change in the judge’s thinking.  Professor Ronald K.L. Collins details this about-face in Posner on Same-Sex Marriage: Then and Now. It is captivating reading.

As I concluded Professor Collin’s piece, I thought of Mr. Justice Holmes. Some may remember that he too changed his views dramatically on the value of free speech in his Abrams’ dissent. See Thomas Healy, The Justice Who Changed His Mind: Oliver Wendell Holmes, Jr., and the Story Behind Abrams v. United States, 39 J. Sup. Ct. History (March 2014)  (download free at the Social Science Research Network) (Abstract: “It is one of the great legal and intellectual mysteries of the twentieth century: Why did Oliver Wendell Holmes change his mind about the value of free speech in the turbulent months following World War I and write his landmark dissent in Abrams v. United States? In this Article, I provide the most comprehensive answer yet to this question. Relying upon extensive archival research – including a number of previously unpublished letters – I argue that Holmes’s dramatic transformation was the result of two related, but distinct developments. First, during 1918 and 1919, Holmes was the target of an intense behind-the-scenes lobbying effort carried out by a group of young progressives that included Harold Laski, Felix Frankfurter, Learned Hand, and the editors of the New Republic. Holmes cared deeply for these young men, viewing some of them like sons, and was thus surprisingly susceptible to their influence. Second, at the same time these men were lobbying Holmes to adopt a more expansive view of free speech, two of them – Laski and Frankfurter – came under attack for their own radical views. Holmes learned about their difficulties in the spring of 1919 and wrote several letters on their behalf. Then, when trouble flared up again that fall, Laski and Frankfurter asked Holmes if he would write an article on tolerance for the Atlantic Monthly. Holmes declined, citing his heavy workload, but several days later he wrote his dissent in Abrams “as if possessed,” he explained to Frankfurter. Thus, I argue, Holmes’s dissent can be seen as more than just an abstract defense of free speech. From the perspective of his young friends, it was a defense of them.”).

It is well-known that Posner holds Holmes in high regard. See, e.g., Richard A. Posner, The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr., (Paperback – January 1, 1997). Consequently, we should not be surprised then that Posner emulates the great man in the flexibility of the mind. Indeed, Professor Collins provides us important insights into the ability of Posner to see the world differently as time marches on without the slightest concern about the bugaboo of “inconsistency.”

I urge you to read Collins’ piece. As you do, remember Emerson’s dictum: “A foolish consistency is the hobgoblin of little minds.”

RGK

Posner on greatness

Professor Collins’ series on Judge Posner give us many insights into the thinking of a great judge. The irony is that Posner doesn’t care about being great. He is bored by the idea.

It is not that Posner lacks for ego. Oh, God(s), no! He has ego aplenty. In fact, his ego is so strong that he “nicht eine Scheiße” about the opinions of others. His thinking, his research, and his writing is what he cares about. If others find it wrong, or even immoral, Posner is perfectly indifferent to their opinions. What he does care about–what drives him–is the quality of his intellectual effort and the joy that he derives from that endeavor.

RGK

Posner pisses off plenty of people on privacy

Entitled “On Privacy, Free Speech, & Related Matters — Richard Posner vs David Cole & Others,” Ronald K.L. Collins has this post at “Concurring Opinions.” As I frequently do, I tip my hat to Howard Bashman at How Appealing.

What is most interesting to me about this piece on Posner is not the judge’s provocative statements suggesting that privacy is far less important than national security. What is really interesting to me is the shocked and vituperative reaction he received as a result. See, e.g., here (Nick Gillespie) and, for an especially tough piece, here (Glenn Greenwald). Posner is not much of a romantic when it comes to privacy and free speech, and that apparently makes some folks froth at the mouth.

Image credit: disinfo.com

Image credit: disinfo.com

I don’t agree with a lot of what Judge Posner has to say on privacy and free speech. That said, perhaps I have signed too many search warrants for electronic data and Title III interception orders for wiretaps and bugs, but I pretty much agree with him on one point. We should not fear the government scooping up too much information in pursuit of crime or in furtherance of the national security. On the contrary, we should fear that a risk averse government will seek to scoop up too little.* However, reasonable people can certainly disagree, and that value judgment is not as simple as Judge Posner seemingly thinks.

As an aside, I bet Posner and I see the world in the same, almost paranoid, terms and that accounts for our agreement on this point. Why that paranoia does not extend to the government is a question for which I don’t have much of an answer. For myself, all I can say is that I try to be a good German.

Anyway, Professor Collins once again does a wonderful job helping us understand the brilliant Judge Posner and, this time, the judge’s views on privacy and free speech. I encourage you to read this most recent piece.

RGK

*You would be fascinated to know about the government’s technological capacity to listen in on anyone anywhere. You would also be impressed (and maybe depressed) by how hard it is for the government to get the judicial authority to do so. Having said that, I have had only indirect involvement with national security matters as compared with far more experience in criminal cases. In short, I am only slightly better informed on government snooping for national security purposes than the man or woman on the street.

Judge Posner: “Very nice for fat cats and enemies of abortion.”

That is the judge’s answer to the question: “The Roberts Court has rendered 36 First Amendment free expression rulings. How would you characterize the First Amendment jurisprudence of the current Court?” Ronald K. Collins, On Free Expression & the First Amendment — More Questions for Judge Posner, Concurring Opinions (December 10, 2014).

Fascinating discussion. You should read the entire article. I am interested in your views about Judge Posner’s views.

RGK

H/t How Appealing.

A must read about Judge Posner

With a tip of the hat to the incredible resource that is Howard Bashman and How Appealing, you must read: “The Maverick — A Biographical Sketch of Judge Richard Posner: Part I.” authored by Ronald K.L. Collins at “Concurring Opinions.” It is a wonderfully written and insightful piece that contributes greatly to our understanding of Judge Posner.

The failure to put Posner on the Court is a modern-day tragedy of immense proportions. It is infuriating that no President–Republican or Democrat–had the guts to nominate Posner because they feared that he was just too damn smart and too damn candid and too damn unpredictable and too damn intellectually honest.

RGK

Judge Posner says: The American people know more about the CIA than the federal judiciary.

A recent Harvard law graduate from Nebraska, while studying for the bar and umping little league games, graciously took time to write me about a fascinating interview with Judge Posner in the ABA Journal. See Joel Cohen, An interview with Judge Richard A. Posner,  ABA Journal (Jul 1, 2014 5:20 AM CDT). I strongly recommend reading the interview.  The interviewer does a fantastic job of drawing Posner out on all manner of things including his public writings and his public quarrel with Justice Scalia.

But, for present purposes, I will concentrate on one aspect of the interview. Then I want your take on Posner’s assertions and the implications we should draw from them. By the way, his views get to the heart of this blog.

Here is the exchange I want you to concentrate on:

JC: Do you have any concern when you engage in, for lack of a better word, a dust-up with Justice Scalia that it deflects from the respect the judiciary might have in the eyes of the public, or even the bar itself?

RAP: I don’t care about that.

JC: How can that be?

RAP: Because I don’t understand why the judiciary should be the most secretive branch of government. The public probably knows more about the CIA than about the judiciary. There are few secrets in the executive branch. Everybody leaks. And Congress—they’re totally exposed. But judges have the most extraordinary gift for secretiveness. Why should that be? Why should judges be able to conceal so much from the public?

JC: So, Judge, you now have an opportunity to air laundry that perhaps hasn’t been aired.

RAP: It’s not a matter of airing dirty laundry; it’s about the public having a realistic understanding of the strengths and weaknesses of the judiciary. For example, there’s wasteful spending on the courts (particularly on the courthouses, which often are wastefully large). There’s a work-ethic problem for some judges—you always have that when you have tenure; you have it with academics, with civil servants. But the most secure tenure is that of a federal judge. Some judges work very hard until they drop—others don’t. And of course judges are not uniformly able. There’s also a problem of excessive delegation to staff, mainly law clerks. And at least three circuits, the 5th, 6th and 9th, now have pre-assignment of judges. A case is assigned to a judge before argument, and he is expected to circulate a memo about the case in advance of argument to the other judges on the (normally three-judge) panel. The danger is that the other judges won’t prepare adequately, feeling it’s the assigned judge’s case. I consider that a questionable practice, deserving full examination. And there are other problems as well, including problems with the overall management of the federal judiciary.

Is Posner right? What are the implications of sitting federal judges (active or senior) writing (or speaking about) “dirty laundry? What about blogs?  Add whatever thoughts come to your mind!

Here is my quick take. Posner is exactly right. We run the federal judiciary as a secret society. It is not. The federal judiciary is a public body that should be open and as transparent as the work of the courts permit. For example, I strongly believe that now is the time to video all federal judicial proceedings–everyone and in every court. We have the digital technology today to make these recordings available on a daily basis through CM/ECF. It could be done at low-cost, and it would open the federal judiciary to review by the public about the daily struggles, strengths and weakness of our federal courts. People throughout the world could see in near real-time what really goes on. In my view, what really goes on is largely triumphal. In any case, the people have a right to know.

I conclude with this idea.  A recent poll of our public showed that only 30% of the People (a record low) have confidence in the Supreme Court. That is a very bad thing. As Alexander Bickel said many years ago, in The Least Dangerous Branch: The Supreme Court at the Bar of Politics and The Morality of Consent, judicial review stands in stark, very stark, tension with democratic theory. Thus the Supreme Court (and probably all federal courts ) must play a statesman-like role in national controversies leading public opinion, albeit infrequently, shyly, carefully and ever aware that survival of our anti-democratic courts turn on a public consensus that the federal courts have a central role to play in our democratic society even though the judges are unelected and life-tenured. If we lose the support of the people, the federal judiciary is doomed. For me, complete and utter transparency is the only effective antidote to the cynicism that abounds regarding the federal judiciary.

Enough. Tell me what you think about Judge Posner’s views and the implications we should draw from them. I am very interested in your thoughts.

RGK

*For what it is worth, Bickel, more than any other contemporary scholar, shaped and continues to shape my view of the proper role of federal judges writ large.

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