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Judge Posner’s weak and inappropriate mea culpa

Judge Richard Posner, in his latest book Reflections on Judging, has declared that he made a mistake in upholding Indiana’s voter-ID law. Posner wrote the majority opinion in the case. The decision was affirmed by the Supreme Court, by a vote of 6-3 with the lead opinion by Justice Stevens.

Judge Posner blames the lawyers for his mistake — always a good ploy. In an interview, he claimed that the court wasn’t “really given strong indications that requiring additional voter identification would actually disenfranchise people entitled to vote.” He also asserted that “we weren’t given the information that would enable that balance to be struck” between preventing fraud and protecting voters’ rights.

Judge Posner’s mea culpa raises two issues. First, is it meritorious; second, is it appropriate.

Ed Whelan finds Judge Posner’s mea culpa “weak.” He notes that, in a book replete with footnotes, the judge provides no support for his claim that the Indiana law “was a type of law now widely regarded as a means of voter suppression rather than of fraud prevention.”

Moreover, Ed observes, the stark dichotomy Posner posits between fraud prevention and voter deterrence isn’t sound because any fraud-prevention measure will have the incidental effect of deterring some people from voting. Posner recognized this in his opinion.

As for blaming the lawyers, Paul Smith, a distinguished advocate who represented the law’s challengers once the case reached the Supreme Court, has demonstrated in some detail that the lawyers who handled the case when it was before Judge Posner presented him with all the evidence he should have needed to reach the conclusion he now embraces. Indeed, the evidence before the court caused Judge Terrence Evans to conclude in dissent that “the Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by folks believed to skew Democratic.”

The other question raised by Judge Posner’s mea culpa is whether he should publicly second-guess his decisions. Charles Lane, no supporter of voter ID laws, makes a good case that it is not appropriate for Posner to do so:

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.

It doesn’t help matters that Posner’s confession of error contained a gratuitous slap at the losing lawyers or that it hinged on a vague notion of how the Indiana law, and others like it, are now “regarded.” As it happens, opinion polls consistently show that voter ID laws are popular among voters of both parties.

Lane’s last sentence takes us back to the merits, and further reveals the shallowness of Posner’s new view of the matter. When Lane informed Posner by email that polls, even among Democrats, refute his claim about how voter ID laws are regarded, Posner responded:

That’s not my impression. I believe that all but one of the photo ID identification laws were passed by state legislatures that are Republican controlled.

(Emphasis added)

But the fact that Democratic politicians don’t support voter ID laws doesn’t trump evidence that registered Democrats favor them, where the issue is how such laws are “regarded.” Ordinary Democratic voters have less of an interest than Democratic politicians do in opposing laws that may reduce the total Democratic vote.

For decades, Judge Posner has been a leading jurist and a leading public intellectual. His books, half a dozen (or so) of which I have read, constitute a remarkable achievement.

But Charles Lane is correct to say that “the American people give [federal judges] $185,000 a year, plus life tenure, power and prestige, to be public servants — not public intellectuals.” And Ed Whelan is not unfair to say that Posner’s discussion of the voter ID law issue “seem[s] sloppy and ill-considered.”

Ed concludes:

Posner’s recent remarks may. . .stand as an indictment of the unstable and open-ended judicial approach that he advocates in his new book, a supposedly “pragmatic” approach in which how a judge should decide a case “will often depend on moral feelings, common sense, sympathies, and other ingredients of thought and feeling that can’t readily be translated into a weighing of measurable consequences.”

Could be. Judges shouldn’t, in any event, decide cases based on impressions.

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