Wednesday, October 23, 2013

Looking Down From Olympus

Oh, the majesty!  These Olympians on their lofty perches.

They sit on high so that we groundlings must peer up at them as the supplicants we are while they dominate.  We dress up before appearing to bow and scrape.  They wear robes to hide - who can say?  Are they naked beneath?  Or do they wear suits of spun gold?

They hand down orders and opinions.  Mete out rewards and, especially, punishments.  Cash redistributed.  Property forfeited.  Men and women beg for mercy before obediently, peeing in cups, marching off in handcuffs and belly chains and leg irons. 

"Off with his head," they say.  And by god (though perhaps not immediately) decapitation may follow.
* * * * *
Charles Lane, in the Washington Post, condemns Judge Richard Posner for publicly saying that he was wrong when he voted to uphold Indiana's voter suppression law.
The ever-provocative federal appeals court Judge Richard A. Posner has made news again, this time by voicing second thoughts about his 2007 decision to uphold Indiana’s voter ID law.

The ruling was later affirmed by a 6 to 3 vote of the Supreme Court. But Posner says, in a new book, that the Indiana law was of “a type . . . now widely regarded as a means of voter suppression rather than of fraud prevention.” In recent interviews, the judge chalked up his mistake to the plaintiff’s lawyers’ failure to present “strong indications that requiring additional voter identification would actually disenfranchise people entitled to vote.” 

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.
Note, please, that Lane's complaint isn't that Posner fucked up in 2007.  Nor is it that Posner has concluded that he fucked up in 2007.  Rather, it's that he's admitted it.
The best judges maximize their impartiality, actual and perceived, even at the cost of self-restraint in their public statements. They do so because the public is entitled to a judicial process that earnestly aspires to fairness and objectivity, however elusive those goals might be. They understand that there is a fine line between realism and cynicism. 
Ah, yes.  Judges are to be impartial.  And if they aren't, they're to pretend that they are.  They must look Olympian, hide behind their robes.  Lest we learn . . . .
* * * * *
The Supreme Court of the United States (even the name oozes grandeur) does not allow cameras.
  • The snippets on the news would be misleading.  They say.
  • The lawyers who appear before us would emote and overact, playing to the cameras rather than soberly addressing stuffy legal arguments to us.  They say.
  • It would diminish these proceedings.  They say.
  • And the public . . . . Ah, the public.  It would lose respect for us.  They say.
* * * * *
Richard Kopf asks whether he's crossed the line into impropriety that Lane says Posner crossed.  Can judges be too public? he wonders in a post on his blog, Hercules and the Umpire.  

The simple-minded answer is that he has not since he has not become a public intellectual nor has he announced that he was wrong on a major decision with political overtones.*  The more nuanced (and meaningful) answer is that he has not.

Lane's line is crossed, it seems, when a judge concedes that his decisions are not handed down to her on tablets while standing on the mountaintop.  The judge must appear Olympian, Lane would have it, lest we learn that she really is naked neath the robe.

Posner favors (and revels in, but that's a different point) transparency.  Should you think that a good thing, Lane says, remember that Posner's personal views are seriously at odds with ones Lane thinks right minded people should have.
Would federal courts enjoy a better reputation if every judge spouted his views as freely as Posner does? A worse reputation? Before you answer, consider this less-publicized selection from his recent comments: “I don’t really share the widespread concern with surveillance by the NSA,” he told the Huffington Post. “If they want to read my emails, they’re welcome.” 
Respect for the judiciary, it seems, is to be based on their hiding unpopular opinions - or any opinions at all. To admit that judges are human is to reveal that their opinions are no more than their opinions.  Better they should lie.

But you know, even after Toto pulled back the curtain and revealed him to be a humbug, the wizard was able to give the Tin Man a heart, the Scarecrow a brain, and the Cowardly Lion courage.






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*Lane is apparently OK with judges making such announcements once they're no longer on the bench.  It's sitting judges who, he says, must avoid confessing error. Except, perhaps, if they overrule themselves, though it may be that Lane thinks they must never do that.


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