Jurist, Heal Thyself

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Judge Posner

We were directed to this diatribe the other day and it so irked us we are moved to comment here. There is a sitting 7th Circuit Court of Appeals judge who found it necessary to write an op-ed in the Washington Post educating us on the politicization of the US Supreme Court.

Commenting on the Republican-led Senate’s decision to not consider, until the next Congress and the next President are sworn in, the nomination of any potential Supreme Court justice to fill the vacancy left by the late Antonin Scalia, Judge Richard Posner says this:

Rather, the significance of the Senate’s action lies in reminding us that the Supreme Court is not an ordinary court but a political court, or more precisely a politicized court, which is to say a court strongly influenced in making its decisions by the political beliefs of the judges.

We implore you to read the piece in it’s entirety, but we offer this assessment of Judge Posner’s lecture:
First, the title of the article is a harbinger of the many non-sequiturs that are contained in the op-ed. Posner says that the proof Supreme Court is a  political animal is evidenced by the actions of the Constitutional body empowered to ratify the nomination of the executive. Is it just a coincidence that Posner comes out with this op-ed at this time (and in that forum, the Washington Post)? No, and he could have better spent his time perusing the briefs on pending cases in his court’s docket  than bloviating about politics. But one of our concerns with his tack is that just because a political entity plays politics with the process does not necessarily make the animal itself a political one. Although there is no such thing as perfection in our mortal affairs, it has long been an expectation that high court judges would hold themselves above the fray, as far as gross political activity or gratuitously pursuing an agenda is concerned.

Posner nuances the politics of it by mentioning the jursts’ “political ideology”. He of course talks about “conservative” and “liberal”. Well, an “ideology” is not, in and of itself, down-in-the-mud politics.
Does a judge think he has to issue opinions based on what it says on his Party Registration card? Isn’t Posner actually casting aspersions on the judge corps? Can’t they vote for a dog catcher, Congressman, or President based on what political aptitudes and inclinations those people might have and yet still put on their blindfolds and do the justice thing?

Does a policeman who might be a social conservative and a card-carrying Republican not feel it his duty to protect and serve the welfare recipient who might be the beneficiary of the largesse of the opposition Social Democrat machine? Of course he does. And judges are allowed to hold to a lower standard?

Posner goes so far as to say that the judiciary being political is inevitable.

This is not a usurpation of power but an inevitability. Most of what the Supreme Court does — or says it does — is “interpret” the Constitution and federal statutes, but I put the word in scare quotes because interpretation implies understanding a writer’s or speaker’s meaning, and most of the issues that the court takes up cannot be resolved by interpretation because the drafters and ratifiers of the constitutional or statutory provision in question had not foreseen the issue that has arisen.

Again, we implore you to read the op-ed for yourself , but that last little bit about the drafters of the Constitution and the amenders of the Constitution not being able to foresee this or that issue, and thus judges cannot interpret the issue in light of Constitutional principles is just so much hogwash. Any layman, any non-legal scholar can see through this logic (take note that the fellow pushing it is an acknowledged political ideologue) if they envision the endless number of “issues” that have “arisen” or that could possibly “arise”, not just in the 21st Century but even in the first few decades after the Supreme Court started convening. The argument is trite. As in, “Well, duh! Yes, Judge Posner, you sage, you; nobody could possibly envision every issue under the sun to arise now or in the future. But your estimation of the “inevitability” of the Court being political devolves into stating that founding principles are useless because we have telephones and computer chips these days. How utterly absurd. Did the Constitution become obsolete when Samuel Morse came out with his invention?”

{For more complete background on Judge Posner’s postulations, please follow the link in the ‘Note’ below}

Judge Posner’s argument is the old “The Constitution is a living document because what was originally intended has no application based on the passage of time and American ingenuity.” We are just too advanced to be guided by the original charter. And to put an extremely fine point on it, he inadvertently posits that judges today aren’t wise enough to apply Constitutional precepts to today’s situational ethics. He says the jurists have no choice but to rely on ‘case law’, evolving statutory law and the marvels of modern legal niceties to create some sort of new-fangled “common law”. Indeed, that very thing that was what we came from, in  Jolly Olde England, but which wasn’t enough because it did not secure the basic rights we as a people demanded, is apparently what the genius Posner wants to return to. This at the same time that the Bill of Rights is soooo, 18th century, don’t ya know? Which is it, Judge? Old is good or old is bad?

We are moved, then, to ask the question: If the laws and legal issues of today cannot be referenced to a foundational charter, what validity do they have in the first place? Why is it just the Constitutional Articles and Amendments of two hundred years ago that are outdated? Why is the law passed by the Colorado legislature a scant three years ago not itself outmoded because in the ensuing short space of time, new information concerning the potency, addictive properties and damage to the cognitive makeup of young people likely to abuse the drug has come into being? Passing laws may be all the rage, but there is no inherent virtue in merely establishing legal precedent which itself can become both counterintuitive and counterproductive in a heck of a lot shorter time span than two hundred years.

Priors and precedents and pressing issues – those are the be-all, end-all of Posner’s advocacy of judicial activism. He goes so far as to say the judges actually make law. This is what is popularly known as “case law” and we have been lectured often by lawyers of every type about not only the legitimacy but the supremacy of “case law”. But to go the extra mile and argue that there can be no enduring principle because mores and methods change over the years, amounts to nothing more than advocacy of dictatorship. The law is whatever somebody says it is at a given moment in time, whether it be one person, , an oligarchy or a political party, and it doesn’t matter what branch of government it originates from, it doesn’t have to conform to any particular charter or solemn pact so this tripartite system we have is really kind of silly, isn’t it Judge Posner?

Scalia sworn in

In Judge Posner’s world there is no need for a jurist to place his hand upon a sacred bible and pledge to uphold the Constitution because not only is it impossible to uphold the document because of it’s age, but swearing upon a text such as the Bible is in itself meaningless because that tome is WAY MORE THAN TEN TIMES AS OLD AS THE CONSTITUTION.

Do you begin to understand where the arguments of people like Judge Posner are coming from?

Finally, to point out one more obvious contradiction in Posner’s argument, while it is entirely within the realm of possibility that some, or most, or even all of the Supreme Court Justices opine to some degree or other based on their political views (though we will continue to object that it is not “inevitable”, that it is in no way necessary for them to do so merely because it’s 2016) Posner ends his piece with the notation that not only political ideology but “religion” plays a large role in the justices’ handiwork. He takes pains to emphasize the Catholicism of the late Justice Scalia and also that of Roberts, Alito and Thomas. But curiously he says that Kennedy’s and Sotomayor’s religion influence them much less and the three Jewish judges hardly at all. Well, kids, two and three is five and that’s a majority. So we are left with a non-sequitur in the religion quotient. If five of the remaining eight justices are not all that hot on issuing decisions based on their religious viewpoints, is it really so “inevitable” that the jurists have no choice but to be activists and to constantly bend, twist and create law and go through all sorts of contortions to accommodate modernity?

Answer: Posner lets the cat out of the bag by concentrating on the religious convictions of the true conservatives on the court. He is miffed not by their religion alone, or by their political ideology alone.
He is miffed by their being guided by principle. And the seminal principle, which he emphatically rejects, is that the Constitution itself, in it’s original intent, is as valid a document for people to study and be guided by in every “issue” worthy of being brought before the Supreme Court because said document itself follows in the tradition of not only hundreds of years of enlightened “liberal” and “conservative” thought which preceeded America and it’s Constitution but also on the sacred principles of religious faith which ultimately inspired it, and which will never lose their relevancy to America, no matter how much Judge Posner wants to abandon those principles.

We are endowed by our Creator with certain inalienable rights, and we, the people, in order to preserve those rights for ourselves, and our posterity, established and ordained the Constitution for the United States of America.

Those who continue to function in any capacity in our Constitutional form of government while insisting that the precepts which allow it to continue to exist are worthless, and especially who would deign to sit in judgement of not only WE who created it but of their fellow jurists as being incapable of anything but rank political practicality, are sick.

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Note: For a profile and analysis of Judge Posner’s beliefs, see here.

Tip of the hat to the perspicacious streetwise.

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bobmontgomery
Poor. No advanced degrees. Unorganized. Feeble. Disjointed. Random. Past it. .... Intrigued, Interested, Patriotic and Lucky.

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