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.
*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.