For decades, a debate over lifetime appointments in the federal judiciary have pitted those who value freedom from political influence against those who see a need for accountability. The former want to continue the tradition, and the latter want either term limits, retention elections, or a combination of both, as many states have in place now. No serious effort has been made to propose such a system, but perhaps an “exit interview” by the New York Times’ Adam Liptak of retired appellate jurist Richard Posner will prompt one. And it should, as Posner inadvertently makes the best possible case for it:
He is 78 and had been a judge since 1981, when President Ronald Reagan appointed him to the United States Court of Appeals for the Seventh Circuit, in Chicago. Before that, he was a prominent law professor who was among the leading figures in the movement to analyze legal problems using economics. In emphasizing social utility over, say, principles of fairness and equality, he gained a reputation as a cold, calculating conservative.
That changed over time, and his recent opinions on voter ID laws, abortion, same-sex marriage and workplace discrimination based on sexual orientation have been decidedly liberal.
That’s hardly a new phenomenon, although certainly one that routinely frustrates conservatives. It’s often derisively called “growing in office,” and is one reason why conservatives have pressed Republican presidents to nominate solid originalists rather than moderates to the federal bench. Conservatives have lodged similar complaints about Sandra Day O’Connor, Anthony Kennedy, and especially David Souter, among many others.
Those complaints do sometimes form the basis of calls for term limits on the federal bench, but are widely considered as sour grapes. What Posner admits next, however, has less to do with outcomes and more about corrupting the entire point of self-governance and the rule of law:
He called his approach to judging pragmatic. His critics called it lawless. “I pay very little attention to legal rules, statutes, constitutional provisions,” Judge Posner said. “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”
The next thing, he said, was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. “And the answer is that’s actually rarely the case,” he said. “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.”
“Forget about the law”? As I write in my column for The Week, the duty of the judge is to uphold and apply the law, not impose his own preferred solutions. That model of governance is more akin to feudal lordship, a system of governance that the founders rejected and which has gone out of favor in the Western world — at least as far as we know:
The role of the judiciary in the American model of governance certainly can be described as dispute resolution — but within the law. At both the federal and state levels, voters elect representatives to legislatures, which write the laws under which we consent to be governed. The executive branch provides a check on that authority with veto power and enforces the laws that are by common agreement adopted. The judiciary has the authority to rule when laws violate federal and state constitutions, but their primary role is to use the law to either guide trials to just conclusions or to review cases on appeal — in the context of settled law and precedent.
The guiding principle of this system, imperfect as it can be, is due process under the law for everyone, regardless of rank or privilege. The end result should be a predictable system by which citizens in all situations can rely on both law and precedent to guide their decisions. The entire philosophy of judicial precedent, called stare decisis, is designed to keep the judicial branch from issuing rulings based on personal preference, bias, and flat-out whimsy.
That, unfortunately, precisely describes Posner’s late-career approach. Posner speaks with derision about Supreme Court rulings and precedent, describing them as obstacles to his own whims. “When you have a Supreme Court case or something similar,” Posner told Liptak, “they’re often extremely easy to get around.” Posner has even less regard for critics of his approach: Some, he allowed, are sincere believers in a “formalist tradition,” but others are simply “reactionary beasts … who want to manipulate the statutes and the Constitution in their own way.”
Remarkably, Posner said so without any hint that he grasps the irony of his complaint. One man’s reactionary beast is another man’s superior intellect — or the kind of unpredictable outcomes from which the rule of law is supposed to protect Americans.
In short, Posner by his own admission spent the last “ten to fifteen years” disregarding the legislative and executive branches to create his own law and whim, and then enforce it. Regardless of specific outcomes, that arrogance corrodes the rule of law and the Constitution, and demonstrates aptly why Americans have grown so distrustful of their government. It’s an explicit demonstration of elitism.
The question Posner’s exit interview with Liptak is this: How many other Posners are there on the federal bench? One? Ten? Fifty? One would be bad enough, but we have no real way of knowing — and in the current system, no real way of dealing with it. The only remedy for a rogue jurist is impeachment, a rarely used option that usually only comes into play in more mundane cases of corruption.
It’s time to start considering methods of accountability for the federal judiciary. Perhaps that will be enough to keep future jurists from following Posner’s example, but it at least will give Americans the opportunity to ensure that they have a role in determining the laws under which they are governed, and to be sure that those laws get applied properly in courts.