Sunday, October 13, 2013

Posner 1, DeLong 0

I don't suppose I expected ever to say this: Judge Richard A. Posner is entirely correct sand Professor J. Bradford DeLong is dead wrong.  The topic is the activity of judging and in particular the Crawford voter ID case, and in particular, Judge Posner's refreshing and candid admission that he got it wrong.  And more generally:
We judges and lawyers, we don’t know enough about the subject matters that we regulate, right? And that if the lawyers had provided us with a lot of information about the abuse of voter identification laws, this case would have been decided differently.
And in response, DeLong:


Well, let's start by setting aside the non-essentials. One, it's a rhetorical flourish to paraphrase Posner as saying he "didn't do my job." He didn't say he didn't do his job; he just said he got it wrong. Two (corollary), it's not his job to get it right, because that kind of exaction isn't available this side of the grave. A decent judge certainly wants to get it right and tries his damnedist to get it right. But perfection isn't available this side of the grave and it's refreshing to find a judge ballsy candid enough to say so.

So move on to the main event.  Was it Posner's job to suss out the rights here?  Or was it the job of counsel?  A pert answer would  be: of course it is the job of counsel--that's why they are there.  And indeed it is why they are there: to advocate, but also to advise and instruct the judge--the judge who, by necessity, is being pushed in all kinds of directions by all kinds of pressures and demands.  That's why you have briefs and arguments.  That's why the Supreme Court, say, in a case like Citizens United, say, will roll a case over and invite additional briefing/argument in a case where it feels it hasn't been properly advised.   Anecdote: I overheard the best courtroom lawyer  whose briefcase I ever had the privilege to carry as he cautioned the court "your honor, it is one of the responsibilities of counsel to make sure the court does not fall into error."  That was a polite way of saying 'DAD RAT IT JUDGE YOU ARE JUMPING OFF A CLIFF."  But was true in any event.

Flip the coin.  Not only is it the responsibility of counsel to make its case, there very good reasons for the judge to butt out.  The point  is that any time the judge starts taking his own initiative in the case, he is making himself an advocate: once the judge becomes an advocate, he is no  longer a judge, and when the judge becomes an advocate, then for the opposing counsel, it's two against one. 

That said, I'll grant that every  conscientious judge at least worries about those cases where he feels that counsel is a bumbling idiot isn't doing his job.  But a judge who tries to do counsel's job is putting his own sanity in peril, and inviting real risks into the system.  It was said of Teddy Roosevelt that he wanted to be the bride at every wedding and the corpse at every funeral.  You could easily be tempted to say the same about Judge Posner, who comes close to telling himself (and us) that he really is better than anybody else at doing anybody else's job as well as his own.  Happily and refreshingly, he understands that he, even he, has (and should have) his limits.




brad said...

It has been pointed out to me that Posner mischaracterizes the Supreme Court's decision: it wasn't librul Stevens, J. writing the opinion of the court, it was Stevens pulling two people away from a "yeah, this is constitutional" 5-4 majority, in order to leave the door open for the government to sue again after they saw how Indiana was applying their law...

It has also been pointed out to me that Posner's claim that it was Indiana Democratic Party counsel's fault is also--well, bullshit. Posner decided to apply a low standard of scrutiny to the law, & everything passes low-scrutiny as long as their is any fuzziness in the situation at all. His colleague, Terence T. Evans, wrote: "Let's not beat around the bush: The Indiana voter photo ID law is a not-too- thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic. We should subject this law to strict scrutiny -- or at least, in the wake of Burdick v. Takushi, 504 U.S. 428 (1992), something akin to 'strict scrutiny light' -- and strike it down as an undue burden on the fundamental right to vote." &, of course, if there is any fuzziness in the situation at all, nothing passes strict scrutiny.

My view: Posner's a utilitarian. He doesn't believe in the right to vote--rather, if a law X alters the electorate in such a way as to make good government more likely, that, to Posner, is a good thing. It's because he no longer has the confidence he had in 2005 or in 2000 that the Republicans are the party of good government that makes him regret his 2005 vote...

Buce said...

Hey, Brad, good to hear from you. I thought this might smoke you out.

I suspect Posner's fundamental problem is what they used to say about the (was it Chicago, Burlington and Quincy?) Railroad: the utter absence of terminal facilities.