Posted on 09/13/2017 11:56:01 AM PDT by DeweyCA
For decades, a debate over lifetime appointments in the federal judiciary have pitted those who value freedom from political influence against those who see a need for accountability. The former want to continue the tradition, and the latter want either term limits, retention elections, or a combination of both, as many states have in place now. No serious effort has been made to propose such a system, but perhaps an “exit interview” by the New York Times’ Adam Liptak of retired appellate jurist Richard Posner will prompt one. And it should, as Posner inadvertently makes the best possible case for it:
He is 78 and had been a judge since 1981, when President Ronald Reagan appointed him to the United States Court of Appeals for the Seventh Circuit, in Chicago. Before that, he was a prominent law professor who was among the leading figures in the movement to analyze legal problems using economics. In emphasizing social utility over, say, principles of fairness and equality, he gained a reputation as a cold, calculating conservative.
That changed over time, and his recent opinions on voter ID laws, abortion, same-sex marriage and workplace discrimination based on sexual orientation have been decidedly liberal.
That’s hardly a new phenomenon, although certainly one that routinely frustrates conservatives. It’s often derisively called “growing in office,” and is one reason why conservatives have pressed Republican presidents to nominate solid originalists rather than moderates to the federal bench. Conservatives have lodged similar complaints about Sandra Day O’Connor, Anthony Kennedy, and especially David Souter, among many others.
Those complaints do sometimes form the basis of calls for term limits on the federal bench, but are widely considered as sour grapes. What Posner admits next, however, has less to do with outcomes and more about corrupting the entire point of self-governance and the rule of law:
He called his approach to judging pragmatic. His critics called it lawless. “I pay very little attention to legal rules, statutes, constitutional provisions,” Judge Posner said. “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”
The next thing, he said, was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. “And the answer is that’s actually rarely the case,” he said. “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.”
“Forget about the law”? As I write in my column for The Week, the duty of the judge is to uphold and apply the law, not impose his own preferred solutions. That model of governance is more akin to feudal lordship, a system of governance that the founders rejected and which has gone out of favor in the Western world — at least as far as we know:
The role of the judiciary in the American model of governance certainly can be described as dispute resolution — but within the law. At both the federal and state levels, voters elect representatives to legislatures, which write the laws under which we consent to be governed. The executive branch provides a check on that authority with veto power and enforces the laws that are by common agreement adopted. The judiciary has the authority to rule when laws violate federal and state constitutions, but their primary role is to use the law to either guide trials to just conclusions or to review cases on appeal — in the context of settled law and precedent.
The guiding principle of this system, imperfect as it can be, is due process under the law for everyone, regardless of rank or privilege. The end result should be a predictable system by which citizens in all situations can rely on both law and precedent to guide their decisions. The entire philosophy of judicial precedent, called stare decisis, is designed to keep the judicial branch from issuing rulings based on personal preference, bias, and flat-out whimsy.
That, unfortunately, precisely describes Posner’s late-career approach. Posner speaks with derision about Supreme Court rulings and precedent, describing them as obstacles to his own whims. “When you have a Supreme Court case or something similar,” Posner told Liptak, “they’re often extremely easy to get around.” Posner has even less regard for critics of his approach: Some, he allowed, are sincere believers in a “formalist tradition,” but others are simply “reactionary beasts … who want to manipulate the statutes and the Constitution in their own way.”
Remarkably, Posner said so without any hint that he grasps the irony of his complaint. One man’s reactionary beast is another man’s superior intellect — or the kind of unpredictable outcomes from which the rule of law is supposed to protect Americans.
In short, Posner by his own admission spent the last “ten to fifteen years” disregarding the legislative and executive branches to create his own law and whim, and then enforce it. Regardless of specific outcomes, that arrogance corrodes the rule of law and the Constitution, and demonstrates aptly why Americans have grown so distrustful of their government. It’s an explicit demonstration of elitism.
The question Posner’s exit interview with Liptak is this: How many other Posners are there on the federal bench? One? Ten? Fifty? One would be bad enough, but we have no real way of knowing — and in the current system, no real way of dealing with it. The only remedy for a rogue jurist is impeachment, a rarely used option that usually only comes into play in more mundane cases of corruption.
It’s time to start considering methods of accountability for the federal judiciary. Perhaps that will be enough to keep future jurists from following Posner’s example, but it at least will give Americans the opportunity to ensure that they have a role in determining the laws under which they are governed, and to be sure that those laws get applied properly in courts.
This man and all leftists like him are reprehensible. When I see a correctly decided Supreme Court case that goes against what I personally wish had happened, I side with the Court. When the Constitution gets in the way of what I want done, I defer to the Constitution. Some good things are outside the scope of government authority, and in those cases government should not get involved, no matter how tempting they are. That includes but is in no way limited to some anti-terrorism actions of the past two decades.
Dictat by judge. We have seen it often.
The constitution demands principled men.
The “progressive movement” demands rule by man, not by law.
They are irreconcilably in opposition.
The LAW is designed to protect innocent powerless citizens. Powerful people can protect themselves. Anways have - always will...
Powerless innocent people also support the police while corrupt powerful look down on them... Police and the LAW stand in the way of powerful people taking what they want because they have the power to take what they want.
It's why most of us can't relate to Hollywood movies. They take the view of the corrupt elite and attempt to gussie it up as an innocent powerless person's view.
Tricky and complicated issues here.
The LAW is designed to protect innocent powerless citizens. Powerful people can protect themselves. Anways have - always will...
Powerless innocent people also support the police while corrupt powerful look down on them... Police and the LAW stand in the way of powerful people taking what they want because they have the power to take what they want. It's why elites in hellholes support the criminal underclass... like white liberal elites do in our country with black inner city criminals. They stand WITH the thugs and against the law biding black citizens living in those crime infested areas...
It's why most of us can't relate to Hollywood movies. Hollywood takes 'the view' of the corrupt elite and attempts to gussie it up as an innocent powerless person's view.
Tricky and complicated issues here.
There are hundreds if not thousands of these black-robed despots in our judiciary. Congress will not solve this problem - Article V.
Term Limits:
One Term in office,
Two Terms in Jail!!!
IMHO, this is exactly how the overwhelming majority of judges, especially judges on the highest courts, decide cases. And, IMHO, it’s completely wrong.
You’re right. It’s wrong.
The executive should be immune from being sued. If not we have the rule of the judges.
This needs to be enshrined in Congress.
Power corrupts.
The role of the judiciary is tomproperly translate/interprete the law.
All these judges are illiterates. None of them know a foreign language or latin type legal translations, I can guarrantee you that.
They could not translate the Consitution in what it means with respect to current limits on legislations.
Judges should be there only to limit legislation, not to enhance it or strike it down because they do not think it is big enough and includes enough...
President another judges approved now. Can anyone predict how effective the Federal judiciary would be if judges had to be replaced on a regular basis due to expiring terms?
In Law School, Posner is highly respected.
Just goes to show you the garbage that Law School, in general, is turning out.
Why is it that liberal judges never “grow” and become conservative?
Posner is an idiot piece of crap.
Check this out...this is an actual quote from this guy:
"...I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries — well, just a little more than two centuries, and of course less for many of the amendments),” he wrote. “Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century..."
Of all the things I have read recently, that quote angers and disgusts me because knowledge of WHY the Constitution was written in the fashion it was is CRITICAL to understanding the context of how a judge should live up to the oath they must take:
OATH TAKEN BY FEDERAL JUDGES: "I, Richard Posner, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as Seventh Circuit Court Judge under the Constitution and laws of the United States. So help me God."
How the HELL can he live up to that oath, if he decides he is going to simply disregard the thought process behind its creation????? (As if an oath actually means anything to liberals.)
Without understanding the underlying issue, it is easy to be an advocate for disregarding anything covered by the Constitution.
And it is why that judge's comment angered me as it did. He should have known more than ANYONE why it is important to know why things were put in place.
Otherwise, you have to be a liberal and rediscover the damned wheel every few years. Or months. Or days.
See my post at #16...it is DAMNED wrong. This guy is an arrogant, POS, black-robed fool who plays fast and loose with things that are key to the health of our country.
I swear, I cannot even look at the things that come across FR these days without having my blood pressure rise.
Once you throw out the Creator, you throw out unalienable rights.
The law then becomes a communist’s diabolical playground.
He must have noticed the youth and potential longevity for newly named Conservative judges who will change the political landscape for a VERY LONG time.
Thank you, Judge Posner.
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