Monday, October 21, 2013
Ind. Decisions - More on: Wrapping up, on the ILB at least, the comments on Judge' Posner's disclosure re his decision in the voter ID challenge [Updated]
This is all very interesting stuff, of course, to lawyers interested in voting rights cases, and so Posner's change of heart has gotten lots and lots of media play. But isn't it worth giving at least a little thought to the meaning and implications of judges publicly second-guessing their own decisions in a nonjurisprudential forum, when the decisions themselves continue to live, and perhaps subsequently evolve and die, exclusively within a jurisprudential universe? Are Posner's remarks intended primarily as expiation -- a juicy footnote in the biography of an impressive legal figure -- or are they intended as political speech aimed at influencing the course of future decisions on voter i.d. issues?[Updated on Oct. 22] In the same vein, Charles Lane, an editorial writer for the Washington Post, had a piece yesterday headed "A judicial mea culpa better left unsaid." A sample:
Some critics of voter ID laws may revel in Posner’s confession. I wish he’d kept his mouth shut. Not because I’m a fan of voter ID laws — I’m not — but because Posner’s casual mea culpa is improper behavior for a sitting federal judge.
The Code of Conduct for United States Judges discourages members of the bench from opining on the issues of the day. They may “speak, write, lecture, and teach on both law-related and nonlegal subjects,” as long as that doesn’t “detract from the dignity of the judge’s office” or “reflect adversely on the judge’s impartiality,” among other caveats.
Not the clearest line, to be sure — it has proved flexible enough to accommodate Posner’s vast opus, which, over the years, has included dozens of books and articles on subjects ranging from antitrust to sex, as well as a popular blog. The Huffington Post calls Posner “the premier American public intellectual” of our time.
Yet however blurry that line may be, by publicly recanting one of his decisions while still on the bench, Posner has finally crossed it.
His comments amount to intervention in a live political, and legal, issue, cloaked — whether or not he intends it — in the authority of his judicial office. Indeed, his comments carry the authority of someone who previously considered the matter in court and has now switched sides. It’s as if Harry Blackmun, the author of Roe v. Wade, came out against abortion rights while still a justice.
Posted by Marcia Oddi on October 21, 2013 10:25 AM
Posted to Indiana Decisions