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.

On going public

Before every trial, and for the last 25 years plus, I have conducted a jury orientation for prospective jurors that is open to counsel and the public but which is not part of voir dire or the trial. One of the things I do is to take the prospective jurors on a walk about the courtroom as I narrate what they are seeing. The jurors are able to sit at counsel table, sit in the jury box, and sit in the witness chair. We walk on to the clerk’s bench and my bench and jurors see all the “secret” stuff and how it works. The jurors are really interested in the digital audio system that we use instead of a court reporter, the interactive video display to make documents and drawings accessible to the jury, and the panic alarm button to get additional Marshals. We turn on the “white noise” that blocks the jurors from hearing bench conferences, and I explain why we do that. They are also intrigued by the infrared audio head sets we can provide jurors who are, like me, a bit hearing impaired or when we need to listen to those damn wired buys. If they like, the prospective jurors can sit in my big black fake leather chair. In reverse, we use my door to enter the courtroom (hidden in the wood paneling, to the amazement of the jurors) and walk down the steps behind the courtroom and into the jury deliberation room. I’m yammering all the time as we engage in this tour.

You get the picture. So do the prospective jurors. I envisioned this blog being something similar to my jury orientation. That is, I hoped the blog might become a way to open up what I do, how I do it, and why I do it. And that brings me to my earlier post on Mr. Lane’s editorial in the Washington Post that was critical of Judge Posner for being too public. I asked readers to tell me what they thought, and to apply that thinking to this blog. Incidentally, the idea for that post came from a distinguished East coast trial lawyer, and I thank him, again, for calling Lane’s article to my attention. Readers have responded, and I want to take this opportunity to thank them (and apologize for not responding to each of their comments). That said, I also want to add five thoughts.

First, although I do not agree with Lane’s criticism of Judge Posner, I agree with him that judges can become too public. Indeed, I don’t give interviews to the regular profit-making media because I hope what I do has a significant educational component and I don’t want to detract from that mission by becoming some sort of minor celebrity. Besides, no matter how I faced the camera, I have no good side.

Second, I waited to begin blogging until I was a senior judge primarily to shield the federal judiciary from criticism that I was shirking my judicial duties.  Since taking senior status, I am legally “retired” under 28 U.S.C. § 371(a)&(b)(1), paid an annuity (not a salary) and I would be paid whether I stayed home or worked.  Indeed, in a very real sense, I am working for free. In short, by waiting to blog until I was a senior judge, I hope I have made it hard to attack the federal judiciary for my blogging activities.

Third, like all judges (but not Justices), both active judges and judges on senior status, I am bound by the Code of Conduct for United States Judges. However, since senior judges have the statutory right to turn down cases, see 28 USC § 294(b), senior judges have somewhat more freedom to express themselves without impairing their usefulness as judges. That is, I have to worry slightly less about causing recusals when I blog since I have no obligation to take cases and I may turn down the assignment of specific cases. Nonetheless, I strive hard not to comment upon pending or impending matters in order to avoid recusals. My blog prominently highlights that caveat. See here and here. More generally, having served for six years on the Judicial Conference’s Committee on Codes of Conduct, I try hard to be sensitive to ethical issues under the Code while recognizing that I am pushing the boundaries by engaging in this new medium.

Fourth, the Code of Conduct for United States Judges, in the commentary to Canon 4, encourages judges to help in law reform efforts: “Complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives. As a judicial officer and a person specially learned in the law, a judge is in a unique position to contribute to the law, the legal system, and the administration of justice, including revising substantive and procedural law and improving criminal and juvenile justice.” (Emphasis added.) I hope what I am doing in this blog is consistent with this very important statement.

Fifth, there is a strong theoretical justification for judges to be transparent because only by doing so can we harmonize the very anti-democratic institution of the judiciary with a broader society that exalts, and has enshrined in its written Constitution, the supremacy of democratic principles. The digital age gives judges a powerful opportunity to become more accessible and thus transparent. I have written an essay on this subject, ironically enough, for a Canadian law journal, and I refer the reader to it for a greater exposition of my views. See Richard G. Kopf, The Courts, The Internet, E-Filing and Democracy, 56 U.N.B.L.J 40 (2007). If nothing else, people tell me that the essay is a short and fun read (assuming you have no life, like me). Unfortunately, I just realized that a subscription is required (those damn Canadians). I will see if I can’t post the essay myself and provide a free link later. Later: The essay is now freely available here under “Archive” and “Articles.”

RGK

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.

RGK

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