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Tilting at Windmills

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February 2, 2006
By: Kevin Drum

POSNER'S LAW....Richard Posner is normally considered to be a conservative judge. Am I wrong, then, to be surprised by this?

The way I approach a case as a judge maybe you think it heresy is first to ask myself what would be a reasonable, sensible result, as a lay person would understand it, and then, having answered that question, to ask whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion.

Don't get me wrong. As a casual, one-sentence summary of judicial philosophy, this strikes me as pretty reasonable. But is it a conservative philosophy? After all, Posner basically suggests that first he figures out what he wants to do and then he takes a look at the law to see if he can justify his personal preference which makes it pretty obvious that his reading of the law is going to be heavily colored by his initial instinct about what decision he wants to hand down. I thought that was the kind of thing that us liberals were always being accused of doing?

UPDATE: Conservative's conservative Stephen Bainbridge says Posner's no conservative.

Kevin Drum 12:32 PM Permalink | Trackbacks | Comments (71)

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Comments

Posner is a conservative, but a "pragmatic" one. basically, he's conservative in outcome usually, but not really on process. He's also a founder of law and economics, which is often useful, but he wields it like the end-all-and-be-all, which it ain't. He's not an originalist or anything like that.

Posted by: Goldberg on February 2, 2006 at 12:34 PM | PERMALINK

As a matter of legal theory or philosophy, Posner is a pragmatist. He's not an originalist, a textual literalist, etc.

So that statement is not surprising. Posner's conservatism shows up more in his attitudes and intellectual and policy inclinations. People commonly thought of as legal conservatives shouldn't like Posner's legal thinking too much. But this is nothing new.

Posted by: tom on February 2, 2006 at 12:36 PM | PERMALINK

I thought that was the kind of thing that us liberals were always being accused of doing?

Yeah ... and ... ?

I hope you're not assuming that attacks on "liberals" have anything to do with matters of substance, or are the expression of deeply held values, or (snerk) can actually be expected to be consistent.

You liberal, you bad. Activist liberal judge Satan godless commie fag liberal bad.

The rest of it is drowned out in the noise.

Posted by: bleh on February 2, 2006 at 12:37 PM | PERMALINK

me? i want to thank posner for saying what i suspect actually happens in a typical judge's mind, silly judiciary hearing remarks about the judges job being to enforce the law notwithstanding....

Posted by: howard on February 2, 2006 at 12:39 PM | PERMALINK

Kinda OT, Posner's often a total jerk, but his book "Catastrophe: Risk and Response" is really powerful.

Oh yeah -- "bleh" answered your question, Kevin. Nothing to add.

Posted by: Gore/Obama '08 on February 2, 2006 at 12:41 PM | PERMALINK

So wait, you're saying that they apply one standard to us, and another to themselves?

Who knew?

Posted by: craigie on February 2, 2006 at 12:41 PM | PERMALINK

Since Radicals are by definition always right and right-thinking, any thoughts they have are automatically right. What is allowed to the princes is not necessarily allowed to the serfs.

Cranky

Posted by: Cranky Observer on February 2, 2006 at 12:42 PM | PERMALINK

Well hell, I'm glad the legistlative intent gets factored in there somewhere.

Posted by: joe bob on February 2, 2006 at 12:44 PM | PERMALINK

If you follow the link and read the whole thing, it's actually worse than that. Posner lays out, in nice educated language, the bed-wetting fear of being blown up by brown people that informs the Right in this country.

Let's lock everything down and redefine what it means to be American, as long as that reduces the chances of me being killed by any positive integer. 1% safer? It's worth it!

It's head-shakingly tragic. The terrorists have already won.

Posted by: craigie on February 2, 2006 at 12:46 PM | PERMALINK

It's only bad when liberals do it.

Posted by: tomeck on February 2, 2006 at 12:46 PM | PERMALINK

Earl Warren said he started his analysis of a case by asking "Is it fair?"

Posted by: richard on February 2, 2006 at 12:46 PM | PERMALINK

The trick is in knowing then what Posner considers to be, "a reasonable, sensible result, as a lay person would understand it." While this sounds like an eminently reasonable approach to certain liberal types that value reason and sensibility, just remember that the conservative and liberal definitions of reasonable and sensible are as different as porcupines are to Middle East oil.

These kind of judges give me the willies, even if they might come in a liberal-minded hue. As Kevin said, they determine the outcome and then find ways to justify it later. As far as I have seen, that's a pretty good description of the contemporary conservative mindset.

--
HRlaughed
rktect.blogspot.com

Posted by: HRlaughed on February 2, 2006 at 12:47 PM | PERMALINK

When Posner says 'lay person,' he means slave holder or corporate board memeber. Posner has made this statement to confuse sensible people into thinking they might be wrong about how our judicial system works.

Posted by: Hostile on February 2, 2006 at 12:50 PM | PERMALINK

Posner is not running for office and knows he's not being promoted to the SC anytime soon. He's got a cushy federal judgeship, so what he's really doing is ......

(prepare yourself)

being honest.

This is how judges of all stripes settle things. All of that other stuff you hear about original intent and restraint and the like from conservative (and sometimes liberal) judges is bullshit, but most judges don't want to admit it for fear of losing job opportunities.

Posted by: Doug-E-Fresh on February 2, 2006 at 12:52 PM | PERMALINK

I think even Scalia would agree with Posner here for regular judging duties, common law judging, where the goal is justice. In 'A matter of interpretation' he makes a big deal that constitutional law is an entirely different game than common law, which is why he thinks american lawyers are so bad at it. His textualism only applies to statuatory interpretation, where the goal is accurately enforcing the rules that the government has set down for itself, where you're judging the law rather than the particular application of the law.

Posted by: Tim on February 2, 2006 at 1:00 PM | PERMALINK

Scalia's lies:
http://www.slate.com/id/2134452/

Posted by: Gore/Obama '08 on February 2, 2006 at 1:01 PM | PERMALINK

Hate to break it to you, but that's the way every judge basically decides every case, excepting some of the narrower procedural ones.

Posted by: Rob W on February 2, 2006 at 1:05 PM | PERMALINK

Even Scalia does this.

Conservatives only pretend they don't support this type of jurisprudence.

But conservatives are even more result-oriented than liberal judges.

By a lot.

Posted by: Advocate for God on February 2, 2006 at 1:06 PM | PERMALINK

Others have said this already, but I think it's important to distinguish between being a political conservative and having a conservative judicial philosophy. And I'm pretty sure just about every conservative legal theory would agree that Posner's jurisprudence is not remotely conservative. So I don't think you can get very far by pointing this out and then concluding that "conservative judges" as a class are hypocrites. Posner is a conservative and a judge. He is not a "conservative judge," and I rather doubt he'd ever claim to be. The whole L&E approach was notable precisely for its radicalism.

Posted by: Julian Sanchez on February 2, 2006 at 1:07 PM | PERMALINK

So does this mean this is how the supreme court settles cases. And that in 2000, five judges wanted the outcome of one of their cases to be President George Bush? And found a way to do it?

I'm shocked.

Posted by: joeiscoffee on February 2, 2006 at 1:09 PM | PERMALINK

This is about what is meant by seeking 'equity' in a result, or fashioning an 'equitable' remedy, which is often a guiding principle for a judge.

Reasonable, sensible, or fair would all be synonyms for this idea.

Posted by: sofla on February 2, 2006 at 1:11 PM | PERMALINK

Welcome to the brave new PoMo world of some influential conservatives. Pragmatism is code for relativism and extreme skepticism about the truth or our ability to know anything. Its not just for leftists any more.

In the end, it's anything goes the PoMo Republicans.

Posted by: The Fool on February 2, 2006 at 1:12 PM | PERMALINK

Back in the 1980s, Posner had already made a name for himself by explaining that judges tended to make decisions based on their own feelings, then rationalize those decisions by applying the law one way or the other. Whether it's true or not is another question, but that's how he explained judicial behavior as he saw it. I think that if you go into court and watch how judges actually function, you will see that much or most of it is fairly straightforward application of rules and precedent. By the way, there is plenty of room in the law for considerations of fairness, if I understand correctly, and of course this is what juries get a chance to consider.

Posted by: Bob G on February 2, 2006 at 1:16 PM | PERMALINK

Posner's a pragmatist - everyone who's said so is right - but being the founder of law and economics means that he is strongly influenced by a kind of process we're not really used to. However, the comment mightn't be as 'activist' as it looks - what about the very last phrase (have thought more about this on my homepage if anyone's interested).

Every judge engages in some form of activism - there are many different theories of interpretation and every time a judge decides which one he'll use he's being activist because the theory will affect the outcome. When Scalia does it to keep America in the 1700s the Bushies call it 'strict construction' and say that's a good thing; when judges reach a liberal result through so doing people call it judicial activism. JA swings both to the Right and to the Left...the Right just shout louder right now.

Posted by: Fiona on February 2, 2006 at 1:17 PM | PERMALINK

Two things:

1) Don't believe the conservative rhetoric. Most of what the conservatives say about liberal judges - they do themselves. Clearly in lots of big cases (Bush vs. Gore maybe?) they decided what they wanted to do and then came up with the rationale.

Another way of looking at this charge is through the concept of projection. The accuser projects his or her own motives on the person he or she is attacking. You guys are doing X is frequently a pretty good indication that the speaker is doing X.

2) Posner very likely does go through this reasoning - but that doesn't make him not a conservative. Because how he views the world with conservative assumptions (like markets are always right.) Thus what seems reasonable has already been processed through his own conservative point of view.

Posted by: Samuel Knight on February 2, 2006 at 1:18 PM | PERMALINK

Why not . . .

1) withhold judgement until all evidence is presented and expert witnesses are allowed to testify

2) decide what a reasonable / sensible result might be

3) ask whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion.

The "lay person standard" really doesn't make sense when complex technical or scientific issues are in front of the court. One of my pet peeves is judges using "common sense" when they don't have a complete grasp of the issue in front of them. I guess the lawyers are at least partially to blame.

Posted by: B on February 2, 2006 at 1:19 PM | PERMALINK

Of course Bob G - there was nothing new about what Posner was saying in the 80s... It's basically what Jerome Frank and Oliver Wendell Holmes used to say too (though Holmes with slightly more sanity than Frank)

Posted by: Fiona on February 2, 2006 at 1:19 PM | PERMALINK

Basically this is a realistic view of judging. It is who they all work in real life... William O. Douglas basically said the same thing.

Posted by: John Sully on February 2, 2006 at 1:20 PM | PERMALINK

Samuel Knight: 1) Don't believe the conservative rhetoric. Most of what the conservatives say about liberal judges - they do themselves. ...Another way of looking at this charge is through the concept of projection. The accuser projects his or her own motives on the person he or she is attacking. You guys are doing X is frequently a pretty good indication that the speaker is doing X.

Word.

I'm sure rdw, Patton, McA, or one of our regular trolls will be along shorty to demonstrate the concept of projection.

Posted by: Apollo 13 on February 2, 2006 at 1:26 PM | PERMALINK

Alito has much the same approach, if by "lay person" you mean "Karl Rove."

Posted by: Calling All Toasters on February 2, 2006 at 1:27 PM | PERMALINK

I think characterizing Posner's "reasonable, sensible result" as a "personal preference" is a little unfair. Posner, the father of "law and economics" as an academic and professional combo, believes in the general or societal interest, as developed in conventional economics. It is a notion akin to common sense ideas of fairness, but with more analytic content, based on the idea that the rules of the game ought to be such that society's general interest is furthered in the playing of the game. It is a notion that reinforces acceptance of common law jurisprudence, and the legal idea of equity as a governing principle supplementing the written rules.

Posted by: Bruce Wilder on February 2, 2006 at 1:28 PM | PERMALINK

Yeah, I guess it all comes down to the definition of a "lay person".

If the "lay person" they utilize is ignorant, partisan, racist, evil, misanthropic, arrogant, greedy, lecherous, or otherwise a jerk -- I would not vote to confirm.

Posted by: asdf on February 2, 2006 at 1:35 PM | PERMALINK

Posner likes to make legal decisions based on what is most efficient market-wise (i.e. low transaction costs, maximum value, etc). To him every dispute and interaction can be reduced and modelled on the market. As a result, he opines authoritatively (often and a lot) on stuff he has no clue about (e.g. women's issues, gender issues, etc). The classic problem: "if all you have is a hammer, everything starts looking like a nail".

Posted by: a-train on February 2, 2006 at 1:36 PM | PERMALINK

The important thing to remember about Posner's jurisprudence is that the party that will benefit most monetarily in the aggregate should always win (i.e., corporation over individual, employer over employee, property owner over EPA).

Whenever I read about "strict constructionism" I go back to my courses in constitutional law. In spite of all of their protestations in favor of interpreting statutes, the "sc's" somehow managed to give any statute enacted to give the individual a remedy against the goverment (most notably civil rights legislation) an extremely narrow interpretation, while granting broad interpretation to goverment's statutes enforced against the individual (notably in the criminal law). Strict adherence to legislative intent flew out the window if it meant a result they didn't agree with it. It doesn't make them different than liberal judges in this regard, just much more hypocritical.

Posted by: brewmn on February 2, 2006 at 1:38 PM | PERMALINK

Using Posner's approach, a murder trial would begin by asking whether the victim was a good guy or a bad guy, popular or disliked, solvent or in debt. The hair-splitting would come when a bad guy died owing someone money. A reasonable person would consider it good the bad guy was dead, but bad that the debt wasn't paid.

At that point, Judge Posner would reduce the murder charge to a court order requiring the killer to pay the debt.

IOW, Posner's approach is about as far from any concept of law as you can get. It would be funny, if it didn't also make me want to puke.

Posted by: serial catowner on February 2, 2006 at 1:38 PM | PERMALINK

Well, there is also the isssue of what it means for a result to be "blocked by clear constitutional or statutory text". For a majority of our current court, having Congress pass a law which regulates the content of political speech made by certain assemblies of people, during certain periods prior to an election, is not blocked by the words of the 1st Amendment. When this degree of absurdity is reached, it is not hyperbole to to assert that, for a majority on the Court, words don't actually mean anything, which, of course, actually means that words are defined solely by whomever wields power.

Posted by: Will Allen on February 2, 2006 at 1:43 PM | PERMALINK

You should absolutely update this post with a direct question about this to Professor Ann Althouse the self-proclaimed moderate "convervative blog diva" law professor blogger that begged you for link love.

After she picks herself up off the floor, I am sure her response would be amusing for us all.

Thank you,

Posted by: jerry on February 2, 2006 at 1:45 PM | PERMALINK

So, if Posner "believes in the general or societal interest, as developed in conventional economics", is he a fierce opponent of the Drug Wars?

Because the only thing more certain than death or taxes is that, according to conventional economics the Drug Wars are destructive to the societal or general interest. The economics tell us prohibition creates a black market, untaxed, to meet the demand. Without the economics, you wouldn't see entire nations devoting their agricultural production to a product we both ban and buy. And spending money on prisons for marijuana smokers instead of building schools cannot be good for society.

Legalize it, putting the gangsters out of business, and our rates of drug use would soon fall to the lower levels seen in the rest of the world.

Posted by: serial catowner on February 2, 2006 at 1:50 PM | PERMALINK

Its called GOP PR, framing, rhetoric, Kevin. What you think Lib judges (judicial activism) is a result of a PR, frame campaigne by the far right to over turn Roe. And its been very successful. Even the whole constitutional contructionists meme is more GOP rhetoric. Its the daily noise machine of Rush et al that propagates, a al Joesph Goebels, ideas. The dems don't have a noise machine, do they?

Posted by: the fake Fake Al on February 2, 2006 at 1:55 PM | PERMALINK

Kevin, you genuinely don't understand conservative philosophy (and that's small-"p" as opposed to academic Philosophy) if you don't get this.

This "I have an urge, but I will not act on it if there is societal precedent to stop me from doing so" is basically the fundamental psychosocial precept of conservatism.

The conservative caricature of liberalism, of course, is "I have an urge, and no societal precedent will stop me from acting on it."

And the uncharitable, more cynical interpretation of the conservative position is, in fact, as many posters above have implied, "I have an urge and I will act on it if I think I can keep anyone from finding out about it."

Posted by: The Confidence Man on February 2, 2006 at 1:56 PM | PERMALINK
But is it a conservative philosophy?

It is as easily a conservative as a liberal philosophy. Really, as described, it is neither conservative or liberal, but if Posner's conceptions of a "sensible" person is conservative, it is a conservative philosophy; if that conception is liberal, it is a liberal philosophy.

Its certainly contrary to the rhetoric of the political right that there is some correlation between "conservative" judicial philosophy and law-over-policy judicial philosophy, but that's purely political rhetoric used by people seeking election to the political branches that has nothing to do with any systematic differences between conservative and liberal jurists in the real world, anyway.

I thought that was the kind of thing that us liberals were always being accused of doing?

One of these days, Kevin, your going to need to stop pretending you don't know the difference between political rhetoric and reality.

Posted by: cmdicely on February 2, 2006 at 1:57 PM | PERMALINK

Posner's admission merely confirms the Legal Realist model of judicial decisionmaking best exemplified in Jerome Frank's two-part article in the 1931-32 volume University of Illinois Law Review: "What Courts Do In Fact". Basically, since time immemorial judges have decided who they believe (usually on moral grounds) should prevail, and made up sufficiently formal-sounding law-based reasons to retroactively justify their decisions. The truth of this model is so obvious to anyone who has ever practiced law (or better yet, worked in the judicial system), that legal realists often can't help but laugh at popular debates about abstract theories like "strict construction" and "living constitutionalism". A judge is going to do what a judge is going to do, and he'll make up the reasons later; the best you can do as a litigant or an advocate is not to marshal rational arguments based on precedent and legal authority, but to spin your story to hit the judge in his gut and show him a plausible way to justify the decision you want him to make.

Posted by: Jeremy on February 2, 2006 at 2:09 PM | PERMALINK

Vincent Bugliosi wrote of "result oriented" decisions in his book about the 2000 SCOTS Bush selection. He said that the law clerks of Scalia, Rehnquist and Thomas reached their decision first, then frantically sought legal arguments to support that decision. When their first argument was rejected, they sought out backups.

Posted by: thethirdPaul on February 2, 2006 at 2:17 PM | PERMALINK

Confidence Man:

You're close, but you have to distinguish between public and private conduct. The right-wing (conservative isn't a really appropriate term for people as radical and unprincipled as the current ruling clique) approach to private conduct is "I will act on my urges as long as I don't expect to get caught." Their approach to public conduct is, "I have an urge and will act on it, then rationalize some explanation of how this is an expression of my ethical principles."

For instance, if you take Abramoff's money and then try to prevent a casino which will compete with his clients from being licensed, this is just a natural expression of your pro-family anti-gambling beliefs. If you've also taken more Abramoff money and tried to help his clients to open casinos, this is an obvious outcome of your deep belief in individual freedom and deregulation.

Posted by: Alex F on February 2, 2006 at 2:18 PM | PERMALINK

SCOTUS, ttp - The SCOTS decision was a disaster.

Posted by: stupid git on February 2, 2006 at 2:19 PM | PERMALINK

So-called "result-oriented reasoning" is widely frowned upon at law schools (i.e. when law students and profs analyze appellate decisions), yet Posner's description of how he actually performs the task of judging seems quite accurate to me. It's how all of us would approach the task, whether we 'fess up to it or not. And yet the conventional wisdom at law schools is that this instrumental use of legal reasoning to reach a preferred result is not only wrong but also entirely avoidable, if you know what you're doing. As though legal reasoning is nothing but a set of cold logical algorithms to be applied in series without any concern for the direction the logic is taking you. Odd, really.

Posted by: DNS on February 2, 2006 at 2:23 PM | PERMALINK

Serial, it would have been interesting to see how Posner would have ruled on the Raich decision case, had he been on the court. The economic argument against the War on Drugs is overwhelming, and certainly there is reasonable argument to be made that the Federal Government has no Constitutional authority to regulate what plants a private citizen grows purely for personal consumption.

My guess is that Posner would have sided with Thomas, but who knows? Scalia's vote on Raich is a clear instance of a justice who doesn't like the prospect of widespread pot-smoking, so he decided that the interstate commerce encompasses all human activity, ignoring that the people who wrote the Constitution would likely have simply said that Congress may regulate all human activity, if that is what interstate commerce encompassed.

Posted by: Will Allen on February 2, 2006 at 2:25 PM | PERMALINK

Alex F, you're absolutely right in the disparity between public and private moral philosophies.

And, even more so, in the split between genuine principled conservatism and the Cheney Cabal.

All of which points to McCain slathering himself (ahem) liberally with chrism in preparation for '08.

Posted by: The Confidence Man on February 2, 2006 at 2:28 PM | PERMALINK

SCOTUS, ttp - The SCOTS decision was a disaster.

Except for the golf junket.

Posted by: shortstop on February 2, 2006 at 2:44 PM | PERMALINK
And yet the conventional wisdom at law schools is that this instrumental use of legal reasoning to reach a preferred result is not only wrong but also entirely avoidable, if you know what you're doing.

More, really, that it is all too natural, and that trying really hard to minimize it is essential to for the legal system to fulfill the role that it ideally should and, therefore, lawyers-in-training need to have the instinct beat out of them as much as possible (which, in the end, turns out to be not very much) so they can play their part right, especially if they happen to end up being judges. (To the extent it really works in the first place, I suspect it mostly gets undone by any real work as an advocate, as advocacy is, inherently, results-oriented.)

As though legal reasoning is nothing but a set of cold logical algorithms to be applied in series without any concern for the direction the logic is taking you.

Well, yeah, the legal community has a lot of weird conceits about logical purity and objectivity, like the way it names standards that are clearly, in fact, exactly what the word "subjective" means in every other use as "objective" standards.

Posted by: cmdicely on February 2, 2006 at 3:06 PM | PERMALINK

There is little about the law or the judicial process that Humpty Dumpty has not said earlier or better.

Posted by: Thinker on February 2, 2006 at 3:13 PM | PERMALINK

Keep in mind that Judge Posner is an appellate court judge who works off a record made in a trial court where winners and losers have already been determined. When he is deciding what's "fair," he is essentially deciding whether there is any legal or equitable reason for the outcome below to be disturbed. In 95% of appellate cases, the outcome below is affirmed.

So if Judge Posner determines, based on his review of the record, the the result was not fair to the appellant, only then would he determine whether there is any valid legal basis to reverse the result. If he determines that the outcome was fair to the appellant, chances are he will vote to affirm, even if there might be a legalistic quibble or two about how the result was achieved.

Posted by: petronius on February 2, 2006 at 3:50 PM | PERMALINK

BTW - I don't have any moral objections to what Posner describes his thinking process as. It is reasonable to set up hypothesis - as long as you are willing to reject your hypothesis based on evidence.

And frankly it is just incredibly difficult to evaulate evidence without a working hypothesis.

What I do have problem with is:
1) The right wing PR that they are strict constructionists - and the liberals are somehow not, and
2) The insidious assumption that all free market economic theories are a) always true, and b) always good. Because too often with Posner (or the Economist, or Club for Growth) I see that they assume that markets are always good and then assert that this proves that markets are always good.

So in the end I agree that Posner is brilliant - but I don't see him as particularly insightful. Like Mediveal theologians too often he comes up with brilliant logic on how many angels can dance on the head of a pin.

Posted by: Samuel Knight on February 2, 2006 at 3:59 PM | PERMALINK

Anachronisms such as I may recall that when FISA was formed in 1978, many left-leaning centralist citizens such as I thought that the fact that it was a secret court was perhaps unconstitutional and maybe not a good idea. And now these cur dogs cant even be bothered to stick their heads in 72 hours afterthefact and get a rubber stamp on whatever they were doing from a secret judicial entity that is not to be held accountable by we the people.

The whole concept of probable cause, BTW, is not based on rules of evidence or innocence or guilt, but on the belief that you have to get the judiciary (ie The Law of the Land) involved. You dont let The State do whatever it wants; it cant be allowed to be judge, jury or executioner. That would be tyrannical.

I cant believe this is not producing complete national outrage. Next time I sing The Star Spangled Banner, Im going not going to bother ending with ..Or The Land of The Free and The Home of The Brave.

Posted by: GOboy on February 2, 2006 at 4:06 PM | PERMALINK

No doubt this is a very powerful tool when considering what a reasonable person might due should their Microsoft shares be effected adversely. Yet that turns out to be unethical and immoral in a majority of cases. The real test is can you do what is moral and ethical within the confines of the law. As a judge, you are supposed to set a higher standard than what is reasonable for the average person.

Posted by: parrot on February 2, 2006 at 4:40 PM | PERMALINK

For instance, if you take Abramoff's money and then try to prevent a casino which will compete with his clients from being licensed, this is just a natural expression of your pro-family anti-gambling beliefs. If you've also taken more Abramoff money and tried to help his clients to open casinos, this is an obvious outcome of your deep belief in individual freedom and deregulation. Posted by: Alex F on February 2, 2006 at 2:18 PM

Bingo!

That's it in a nutshell.

Posted by: Dr. Morpheus on February 2, 2006 at 4:40 PM | PERMALINK

All of which points to McCain slathering himself (ahem) liberally with chrism in preparation for '08. Posted by: The Confidence Man on February 2, 2006 at 2:28 PM

Ooh, chrism, bet that stains.

Posted by: Dr. Morpheus on February 2, 2006 at 4:42 PM | PERMALINK

Posner's comment becomes even more appalling if he's an appellate judge. Cases can only be appealed on the basis of the law- not on the facts.

One thing that amazes me is how calmly everyone seems to accept Posner's preposterous idea, even though it would never work in your own job.

Yeah, I know, we're all fierce individualists, but in reality it would be totally insane to go through the day making judgements based on what you think would be a good idea to see happen.

Imagine an architect who thought "Well, they want a conference room, but a day-care center would be better" or a doctor who told you "You could fight the cancer, but your money would be better spent in a last wild weekend in Vegas".

OTOH, this might explain why so many rightwingers think scientists decide what conclusion they want, and then search for the evidence.

Posted by: serial catowner on February 2, 2006 at 4:47 PM | PERMALINK

"Ooh, chrism, bet that stains."

You'd think so, Dr. Morpheus, but you'd be WRONG.

We've secretly replaced Sen. McCain's usual detergent with Tweety Matthews' "Principled Maverick" Universal Solvent -- just marvel at how those chrism stains magically melt away!

Posted by: The Confidence Man on February 2, 2006 at 5:15 PM | PERMALINK

It's easy to overstate what Judge Posner is saying, and maybe he has done it himself. There is such a thing as an easy case, at least once someone has decided what the basic facts are. (If you're an appellate judge, that's someone else's job.) And most cases are disputes about what is so rather than disputes about what the law requires if X is so. For largely economic reasons, a federal appellate judge sees comparatively few easy cases. Even so, a large chunk of any federal appeals court's docket is composed of cases that can come out only one way, and are disposed of by reference to uncontroversially authoritative legal materials. But in genuinely hard cases, the relevant legal materials, while they greatly limit the range of plausible answers, do not compel a single result. Then what? Then we're alll Posnerians.

Posted by: C.J.Colucci on February 2, 2006 at 5:19 PM | PERMALINK

Posner is no true Scotsman. - Bainbridge

Posted by: RT on February 2, 2006 at 5:21 PM | PERMALINK

Yes, if you are a plumber or a traffic cop, there will be times to 'Go Posner'.

But in the appellate system cases depend on an ambiguity or a contradiction in the law. When you want to take a common-sense approach instead of consulting existing law, you use a legislature- to rewrite the law.

And, experience doth shew, that societies in general will benefit from such an established procedure.

Posted by: serial catowner on February 2, 2006 at 5:38 PM | PERMALINK

thethirdPaul wrote:
"Vincent Bugliosi wrote of "result oriented" decisions in his book about the 2000 SCOTS Bush selection. He said that the law clerks of Scalia, Rehnquist and Thomas reached their decision first, then frantically sought legal arguments to support that decision. When their first argument was rejected, they sought out backups."
Posted by: thethirdPaul on February 2, 2006 at 2:17 PM | PERMALINK


What is "reasonable" or "just" or "fair" is all in the eye of the beholder -- and it's crucial that a person's understanding of the law is 'within the mainstream' to avoid having racist, misogynist pigs deciding it's just and fair to lynch uppity women (and such).

Still, I think it's likely that one of the primary techniques of lawyers arguing before SCOTUS would be to consider what outcome those justices might each desire and then provide them with some kind of logic and precedents to allow the justice to justify his or her own path to the desired outcome. Maybe it happens below the SCOTUS level too, but I can just imagine it at SCOTUS more easily.

What's the perfect way to judge a case? I don't know and I suspect it's more mystical than scientific; like the way Larry Bird played basketball as opposed to Wilt Chamberlin.

Posted by: MarkH on February 2, 2006 at 6:50 PM | PERMALINK

I think that what Judge Posner is doing is dispensing justice, rather than just interpreting law. Isn't that what our "justice" system is supposed to do?

Posted by: Mike on February 2, 2006 at 7:00 PM | PERMALINK

Wonder how Posner would be behind the plate at Safeco? Would he have a wide strike zone so a pitcher could nibble the corners? Would he allow brushbacks? Would he call high strikes? Would he give the Yankee's better calls than the M's?

Let's have "results oriented" referees while we're at this game. After Morelli's blown call against Pittsburg, I believe they may be here already.

Play to the Justice's desires? What has this become, Cook County? An old friend, who is a top trial lawyer, told me that when he was a teenager, he got into a dustup - went before a Judge in conference. His attorney spoke and then the Cook Country attorney spoke - The Judge listened very solemnly and said, "Well, Gentlemen, one of you has said what's in it for you, the other has also said what's in it for him, but, Gentlemen, neither one of you has said what's in it for me.

Posted by: thethirdPaul on February 2, 2006 at 7:26 PM | PERMALINK

Posner is absolutely not a conservative -- certainly not in the Burkean or Kirkian sense. He's a fairly radical classical liberal -- that is, he's a libertarian pragmatist. That's an entirely different animal from a conservative. Bainbridge is exactly correct.

Legalize it, putting the gangsters out of business, and our rates of drug use would soon fall to the lower levels seen in the rest of the world.

Serial Catowner: Huh? How do you figure? Almost certainly the use of drugs would increase if the counterweight of the law was removed, and that of social disapprobation weakened. Perhaps you mean that there would be a net benefit flowing from decriminalization. If this is what you mean I'm in agreement: I'd gladly accept modest increases in the use of cocaine or cannabis or opiates in exchange for a huge drop in violent crime and billions in law enforcement and prison cost savings. But we shouldn't kid ourselves that decriminalization would somehow prompt a decline in drug use. It would do the opposite. As a country we'd be higher, and safer.

Posted by: P.B. Almeida on February 2, 2006 at 7:34 PM | PERMALINK

He buys into a lot of the wingnuttery theories too like the media bias essay he wrote a while back. That doesn't mean he can't reason, but he can falter through his own personal political biases on some things.

Posted by: Mark A. York on February 2, 2006 at 8:28 PM | PERMALINK

I think it all depends on how strictly he follows the law, precedent, etc.

After all, realistically, judges are human too. They obviously have their own opinion of what results are morally and reasonably right.

In cases where law and precedent do not address the facts of the case they have to rely on that a lot. In cases where law and precedent do address the facts they should rely on the law and precedent.

Posted by: Michael Friedman on February 2, 2006 at 9:10 PM | PERMALINK

My opinion of Posner formed when I started reading his op-eds that started appearing in national press about five years ago. Most were completely off base and many looked like they were written by an outspoken conservative.

At the time, I had assumed that Posner was an esteemed judge who simply went off the reservation when he decided to venture into social commentary--after all, most judges are essentially scholars and have a somewhat skewed perspective on life. I had not heard of "Judge Posner" and had no idea why he might have been famous. So I gave him the benefit of the doubt in his field. I also did not see him as a ideological conservative.

Then I started reading Posner's judicial opinions (for a variety of reasons, including some classes). Many are simply hair-raising in their contortions. Unlike another 7th Circuit stalwarth, Judge Easterbrook, Posner is no conservative--he's a narcissistic pragmatist. He wants to be on record in every case, irrespectively of ridiculousness of his opinions.

There are writers who are extremely prolific but incapable. They somehow sense the public sentiment and manage to sell enough books to keep writing. But no one would ever refer to them as masterpieces of literature. My belief is that Posner is the judicial equivalent of this phenomenon. Many lawyers simply defer to him because he writes so much--both court opinions and law review articles. Unfortunately, that goes to his head and he now considers himself a star. He also knows that he will never be on the Supreme Court. So he's also angry.

That's a scary combination--angry, pragmatic narcissist. The effect he has had on the common law, thanks to stare decisis, is devastating. Progressives are all flagellating themselves over the Alito appointment and the shift of the Supreme Court to the Right. That's a problem, of course, but the situation is far worse at Circuit level. The majority of judges are either like Roberts, Lessig and Easterbrook--conservative to the core--or like Posner and Alito--extreme pragmatists that often lean to the Right, but not always out of ideological considerations. Alito was more of a conservative than Posner, but they are more similar, I believe, than Alito and Roberts.

I have repeatedly posted my comments on Alito on this blog and on others. My objections to his candidacy had nothing to do with his conservative position--although that made it easier to want to oppose him. I objected to Alito as a pragmatist of the worst kind--the job candidate that freely admits that he'll do anything to please his potential employer. I don't know if he was truthful when he said that he made extreme statements because that would get him a job in the Reagan administration--but I believe that IF TRUE these statements should have disqualified him, becuase they make him look like a potential sycophant. Furthermore--and this is where he and Posner offer some similarities--Alito is one of the most overturned or overruled judges on record. Like Posner, he always wanted to write an opinion whether he was in the majority or the minority.

Both Alito and Posner may be highly intelligent, but, unfortunately, it is no longer possible to tell because of the extent of their pragmatism and narcissism. At least, now that Alito is on SCOTUS, he will have to pull his own weight. There is a chance that he will, like Thomas, end up writing meaningless, meandering opinions, mostly on issues of less than primary importance. But Posner remains unchecked. With his venture into the public opinion domain, he is beginning to lose credibility (which is exactly the opposite of what he hoped to do with this venture). But there will still be many lawyers and judges (and even law school professors) who will simply defer to Posner because he's Posner--the most prolific and most cited judge on record.

Posted by: buck turgidson on February 2, 2006 at 11:22 PM | PERMALINK

Is it just me or is Posner one the most overrated would be commericalized judge in the press today.

Posner is a Bush lacky what with stupid book he wrote on the 2000 Bush v Gore case - written on the ran away train theory for stupid people, by stupid people who would call themselves intellectual.

George Will and Richard Posner are two peas in pod. Both stupid men who think their smart.

Posted by: Cheryl on February 3, 2006 at 9:56 AM | PERMALINK

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Posted by: movie on February 4, 2006 at 2:15 PM | PERMALINK




 

 

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