Monday, January 20, 2014

Judge Posner says SCOTUS not a real court

Judge Richard Posner - Photo by Nathan Weber/The New York Times, via Redux
Posner has ‘absolutely no desire’ to join SCOTUS, which ‘isn’t a real court’
ABA Journal Law News Now
By Debra Cassens Weiss
November 11, 2013


Judge Richard Posner gets a lot of attention for his opinions and his writing, but he’s not looking to leverage his fame to join the U.S. Supreme Court.

Posner explained why he isn’t interested in an interview with the Daily Beast about his compulsive writing habits. "First, I’m too old," Posner said. "I’m 74 and they don’t appoint people my age."

The reviewer notes that Posner sounds "peppy," spurring the Chicago-based federal appeals judge to elaborate.

"Well, I don’t like the Supreme Court," Posner says. "I don’t think it’s a real court. I think of it as basically ... it’s like a House of Lords. It’s a quasi-political body. President, Senate, House of Representatives, Supreme Court. It’s very political. And they decide which cases to hear, which doesn’t strike me as something judges should do. You should take what comes. When you decide which case to hear it means you’ve decided the cases ahead of time.

"Also, because I’m a compulsive writer, I like to write. ... If you sit with eight other people [like the Supreme Court] you only get one-ninth of the cases to write. I’m not interested in that. Now the Supreme Court justices write very, very few majority opinions. Last year they saw 74 cases. Divide that by nine and that’s a little more than eight opinions a year. That’s ridiculous! I write around 90 opinions a year."

Posner says Supreme Court justices do boost their totals through dissenting and concurring opinions, but they don't attract much interest. "I just wouldn’t enjoy the Supreme Court," Posner says. "Absolutely no desire to be on it."

Posner also reveals in the interview that he works from home at least half the time, and one reason is his cat, Pixie. "I’m a very big cat person," Posner says. Pixie is affectionate and "her little face falls" if Posner or his wife leaves the house. "The cat wants us at home," he says. Read more
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ABA Journal: Supreme Court Approval Rating Drops to 25-Year Low (PDF)
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Can Congress impose ethics rules on the US Supreme Court?
ABA Journal Law News Now
by Martha Neil
August 5, 2013


A group of Democratic lawmakers has reintroduced a bill that would require those who sit on the nation's top court to comply with the same ethics rules that apply to other federal judges.

Under the Supreme Court Ethics Act of 2013, supreme court justices would be prohibited from political activity and fundraising, among other conduct that could cast doubt on their impartiality, according to the Blog of Legal Times and the Huffington Post.

Although members of the Supreme Court have said they look to the ethics rules that apply to other federal judges for guidance, they are not required to follow them.

"If the code of conduct applied to the Supreme Court, much if not all of what we believe are questionable behavior wouldn't have taken place," U.S. Rep.Louise Slaughter (D-N.Y.) said at a press conference last week. "Because the code sets forth very simple rules such as no political activity, we think that’s very important, no fundraising, and a necessity to avoid even the appearance of impropriety."

It isn't clear, however, how the standards would be enforced, if they are adopted, and a post on Josh Blackman's Blog questions how the legislative branch can constitutionally regulate the conduct of the judiciary.

In his 2011 end-of-year report, Chief Justice John G. Roberts Jr., who has declined to voluntarily adopt the Code of Conduct for United States Judges, set forth his apparent position, the blog notes.

"The Code of Conduct, by its express terms, applies only to lower federal court judges," Roberts wrote. "That reflects a fundamental difference between the Supreme Court and the other federal courts. Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body." Read more
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Reflections on Judging, Richard A. Posner, author
Harvard University Press


In Reflections on Judging, Richard Posner distills the experience of his thirty-one years as a judge of the United States Court of Appeals for the Seventh Circuit. Surveying how the judiciary has changed since his 1981 appointment, he engages the issues at stake today, suggesting how lawyers should argue cases and judges decide them, how trials can be improved, and, most urgently, how to cope with the dizzying pace of technological advance that makes litigation ever more challenging to judges and lawyers. Read more
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How I Write: Richard Posner
The Daily Beast
By Noah Charney
November 7, 2013


America’s most cited legal scholar, Judge Richard Posner, talks about his compulsive writing, what’s guaranteed to make him laugh, and his passion for cats.

Describe your morning routine.


I don’t really have any routines. Well, if I’m at home or in the office I have a desk and a computer. And I write. I’ve never thought in terms of any particular routine. There are a lot of interruptions, emails and so on. Whenever I have free time, I write. Judicial opinions or academic stuff. I don’t have any quota of words. I understand full-time novelists, say, they will want to do a certain amount of words a day in order to finish a book. Often it’s the same type of day, the same writing instruments. I’m not at all like that. I have to give priority to my judicial work, so when I write an opinion or when I’m editing, I always do my judicial work first. Read more
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Richard A. Posner’s ‘Reflections on Judging’
The New York Times, Holding Court
By KENJI YOSHINO
November 8, 2013


In a famous passage in Marbury v. Madison, the 1803 case establishing the power of judicial review, Chief Justice John Marshall observed that the question of whether an act inconsistent with the Constitution could stand "is a question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest." Two hundred and ten years later, another eminent jurist has turned to questions whose intricacy matches — or exceeds — their interest. "Reflections on Judging" by Richard A. Posner, a judge on the United States Court of Appeals for the Seventh Circuit, is about what judges should do when confronted with complexity. Like the rest of us, judges face an increasingly bewildering world, marked by daily advances in such areas as social media, the sciences and globalization. Unlike the rest of us, judges must make decisions that enforce their understanding — or misunderstanding — of that complexity onto millions. In its organization, this is a simple book. Posner recognizes that awesome charge: he decries one common response to complexity, and endorses another....read more
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Dennis Jacobs, The Secret Life of Judges, 75 Fordham L. Rev. 2855 (2007). Excerpts, An Ambient Bias

When I refer to the secret life of judges, I am speaking of an inner turn of mind that favors, empowers, and enables our profession and our brothers and sisters at the bar. It is secret, because it is unobserved and therefore unrestrained-by the judges themselves or by the legal community that so closely surrounds and nurtures us. It is an ambient bias.  (par. 3, p. 2856)

I sometimes think that the problem at bottom is really a lack of respect by lawyers for other people. Judges live chiefly in a circle of lawyers. But outside that circle there are people who are just as fully absorbed by other pursuits that deserve consideration and respect. Judges need a heightened respect for how nonlawyers solve problems, reach compromises, broker risks, and govern themselves and their institutions. There are lawyers on the one hand; and just about everybody else is the competition in the framing of values and standards of behavior. (par. 4-5, page 2861)

The legal mind is indispensable to lawyering, and for other purposes it is perfectly okay in its way. But it has its limitations. For example, every problem-solving profession-except ours--quickly adopts as preferred the solution that is simplest, cheapest, and most efficacious, or (as they say) elegant... (par. 5, p. 2862)

As a matter of self-awareness and conscience, judges should accept that the legal mind is not the best policy instrument, and that lawyer-driven processes and lawyer-centered solutions can be unwise, insufficient, and unjust, even if our friends and colleagues in the legal profession lead us that way. For the judiciary, this would mean a reduced role, but not a diminished one if the judiciary is elevated by considerations of honor, self-restraint, and respect for other influences. (last par., p. 2863) Read more, NYT PDF
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What’s So Special About Judges? 61 University of Colorado Law Review 773 (1990), Frank H. Easterbrook

Article III of the Constitution says that the "judicial Power of the United States" belongs to the Supreme Court and such "inferior" courts as Congress chooses to establish. It tells us that judges may resolve "Cases" and "Controversies" and that Congress may make "Exceptions" to and "Regulations" of the Supreme Court's appellate jurisdiction. And it says that federal judges hold office during "good Behavior." That is a spare mandate. The Constitution does not identify the scope of the "judicial Power" or spell out what "Behavior" is "good."

Article III does not mention the power that has come to be synonymous with the judiciary in popular, political, and academic minds: to set aside statutes and regulations that do not comport with the Constitution and to direct other political actors to implement the judges' constitutional vision. Such a power of review was not granted; it was inferred. 

It was not inferred because of any attribute unique to judges. Under the Supremacy Clause, the Constitution binds the states; the President takes a special oath to uphold the Constitution; every political actor owes an obligation to put the Constitution (the "supreme Law of the Land") first, a statute’ or regulation second, and his private conception of The Good third.[fn1]. Nothing in the text of the Constitution marks a special role for judges; each public official applies the Constitution when it is time to act.... 

Judges apply well only rules that they have internalized. They do not have time to start anew on each case, and the variance from judge to judge would be intolerable if they did. Constitutional scholarship does not much influence judges, because unlike chemists who pore over professional journals, judges do not read the law reviews. [p 11/782] Read more
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Judicial Immunity vs. Due Process: When Should a Judge Be Subject to Suit? Robert Craig Walters, Cato Journal, Vol.7, No.2 (Fall 1987) The author was Judicial Clerk to Justice Rosemary Barkett of the Florida Supreme Court.

In the American judicial system, few more serious threats to individual liberty can be imagined than a corrupt judge. Clothed with the power of the state and authorized to pass judgment on the most basic aspects of everyday life, a judge can deprive citizens of liberty and property in complete disregard of the Constitution. The injuries inflicted may be severe and enduring.

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