The Volokh Conspiracy

It seems like Posner's book is shockingly naive in its position, as the very purpose of acting as a judge - the description, indeed, of the profession - is to decide matters before the court without regard to personal or temporal political views. While it is certainly ridiculous to assert that any human being is capable of being 100% objective and giving ZERO regard to such views, it seems every bit as ridiculous to assert (as Posner appears to be asserting) that ALL human beings in such a position are incapable of making decisions that do not reflect those views.

I'm no judge, and certainly don't hold myself to the same standard of ethics as a judge - but I believe wholeheartedly in the value of many things which I do not personally need, want, or like. This is called "maturity". I tend to think it's probably one of the things we look for in a judge.

That’s not what Posner is arguing, Darklock. It’s not simply a matter of humans not being able to judge without resorting to non-legal norms (political principles, as Posner might call them) because we’re not perfect. Instead, the contention is that the law is, as a matter of fact, legally indeterminate. In other words, that in some set of cases the law does not provide only one answer. In those cases, no matter how perfect or conscientious the judge, he or she cannot just simply “apply” the law. Does that distinction make sense?

I find some of Whelan's critiques to be somewhat surprising.

I was part of a Colloquium where Posner presented a similarly titled paper that focused on empirical analysis of judicial decisionmaking. Whelan criticizes Posner's characterization of O'Connor as "moderately conservative" but Posner actually has empirical data showing how she earned that title relative to other justices. In that paper, Posner compared the justices' votes to each other and clearly defined his terms so they were very different from the ones used by the media. I'm kind of surprised that this data didn't find its way into the book.

I also think that some of the critiques on here are a bit immature. First, Posner qualified his statement so he isn't saying that every judge in every case is working off of personal bias, he's saying that a lot of judges in a lot of cases work off of personal bias. It doesn't mean the judge necessarily likes the decision. He's not saying that Conservative appellate court judges like affirming criminal convictions, he's saying that when those judges balance the relavent rights they come out affirming those convictions more often than liberal judges (who, based on personal bias might be more inclined toward some arguments that the conservative-leaning judges are not) do.

Second, do you really disagree? read Bush v. Gore lately (I'm a 2L so yes I read it recently)? Can you honestly say that the majority or dissent was based solely on principle? Better yet, look at the posts interspersed on Bench Memos in between the Posner posts - he's talking about Arlen Specter engaging in a showdown with Democrats over judicial appointments. If no one votes based on principle (if they're all this fabled umpire) then why does Specter care if Bush's appointees go through (yes, to fill seats but is that the whole story?) and more strikingly, why aren't democrats concerned with filling seats so the judiciary can work properly? It seems to me like the Dems are more concerned with getting liberal-leaning judges and maybe, just maybe Specter's concerned with getting conservative-leaning judges because, contrary to your 8th grade civics assumption, the judge's personal views are VERY important in determining the outcome of a lot of cases.

Lastly, I think it is interesting that it isn't so tough to find bias in Posner's book (which none of us have read) but it is blasphemous to claim bias in judicial decisionmaking...

I've never understood the reverence toward judges. To me, they are co-workers - nothing more and nothing less. Some do a good job, some do a great job, some do a poor job, and some are awful. They are biased? Wow, thanks for the insight Judge Posner!

Ed Whalen makes superficial attacks on positions that do not march lock-step with originalism/textualism/what Ed Whalen thinks?

I, for one, am shocked.

I'm not sure it is that interesting. In the big picture, there is a tremendous amount of strong evidence, such as the empirical research that Posner cites and Whelan ignores. I really don't understand how you could review Posner's book without addressing that evidence.

Whelan has a few good points interspersed about the details, I think, but he completely ignores the fundamental point of the book.

I think that all Mr. Whelan's responses to Judge Posner establish is that Mr. Whelan is not very smart. How he got into Harvard Law School, much less graduate, remains a mystery to me. All I know for sure that it is sad that a deserving student was denied a place at Harvard Law School

to make room for a second-rate intellect like Mr. Whelan. Alas, admissions decisions are not perfect.

Let's an obvious flaw in Mr. Whelan's confused attempt to refute Posner.

First: I readily concede that the interpretive rules that legalists adopt cannot all be derived, with mathematical precision, “by reasoning from agreed-upon premises.” Given that academic philosophers might have difficulty agreeing, say, on premises from which one could reason to the conclusion that Judge Posner really exists, the standard that Posner would hold legalists to seems an impossible one to reach. But is that the proper standard? And is the exercise of freewheeling “legislative-like judicial discretion” the only alternative? Why isn’t it coherent for legalists to advocate for particular interpretive rules on the grounds that those rules are most faithful to text and history, or to separation-of-powers principles, or to the properly limited role of the judiciary? I don’t doubt that “discretion” will be involved in determining which interpretive rule is best, and I don’t doubt that there will sometimes be room for reasonable disagreement. But I don’t think that the result is open-ended “legislative-like judicial discretion,” and I don’t see why the set of interpretive rules available to legalists needs to be as limited as Posner maintains.

Wait a minute. First of all, Mr. Whelan, and I will say this, stupidly, is blatantly. He asks why we shouldn't choose the rules that are most "faithful" to history and text. Rules that are most "faithful" to separation of powers "principles." Rules that are most "faithful" to the "properly" limited role of the judiciary.

This man is a moron. First, lets examine which of these things can be resolved with reference to the "original public meaning" of the Constitution and nothing else. First, the assertion that there even IS an original public meaning is somewhat retarded, because the "public" is an abstraction, not a real thing. Different individuals that constitute that thing we call the "public" have had different understandings of the Constitutions text (beyond the easy questions) from the very beginning. Exactly whose understanding do we privilege by labeling it as the "original public meaning." You don't really get anywhere with this move.

Can we resolve, in a manner even closely resembling objectivity, what it means to be "faithful" to the "properly limited role of the judiciary" by consulting the "original public meaning?" Answer: No.

Can we resolve, in a manner even closely resembling objectivity, what it means to be "faithful" to "separation of powers principles" by consulting "original public meaning?" Answer: No. We know what you bitch conservatives typically want (usually, the aggrandizement of the executive branch). But there is no way to come up with anything closely resembling an objective answer for hard separation of powers questions.

You know, conservatives will be quick to disagree. They will self-righteously and seriously say that whatever they happen to want with respect to separation of powers somehow comports with originalism. That is because conservatives are morons.

Can we resolve, in a manner even closely resembling objectivity, what it means to be "faithful" to "text" by consulting "original public meaning?" Obviously, the question itself is circular and nonsensical. But it illustrates, I think, the circularity of much of the conservative argument. X is "faithful" because I said so.

Can we resolve, in a manner even closely resembling objectivity, what is means to be "faithful" to "history" by consulting "original public meaning?" Well, exactly what history are we supposed to be "faithful" to? The history of slavery and racism? The history of patriotic service and statesmanship? The history of everyday objects? In word, what "history" are we supposed to be faithful to? The history we like? If you think that this question is even anything close to objectively resolveable in an objective manner, your smoking crack.

Well, one thing is for sure. There is nothing more objectively determinate about what conservatives (and especially government-hating libertarians) would foist on us in the name of "originalism." It doesn't even narrows the range of judicial discretion. (Not that narrowing the range of discretion is necessarily a good thing. It depends on how it is done. I could narrow the range of judicial discretion by saying that judges must always rule against corporations.)

So, what does it get us exactly? Oh, wait. I see, there is an argument that we get better results. That is at least an honest argument. But Mr. Whelan rejects it:

At bottom, the only legitimate test of a legalist approach is whether it produces legally right results, not whether those results are, in the judgment of some grand social engineer, better for society than what pragmatism would yield.

And what makes something legally right? That is falls into your indeterminate and arbitrary category of being "faithful" to text, history, separation of powers, and limited judicial discretion?

And why is falling into that category even important?

See, there is no way of escaping it. Mr. Whelan is the bitch of pragmatism. A conservative pragmatism. What is sad is that he is not even smart enough to realize it.

Free Trader:

That is because conservatives are morons.

I think you should note, however, that not all morons are conservatives. In fact, some may be harshly critical of conservatives; one, at least.

GV said (4.4.2008 4:08pm) --

. . .in some set of cases the law does not provide only one answer. In those cases, no matter how perfect or conscientious the judge, he or she cannot just simply “apply” the law.

Exactly. That fathead Judge John E. Jones III of Kitzmiller v. Dover infamy described the work of judges as "workmanlike," as though judges are unskilled laborers following a manual.

The Civil War should have completely discredited originalism. If the Founders did not have the foresight to write the Constitution in a way that would have prevented the Civil War, then how could the Founders have foreseen such things as today's environmental problems and modern electronic communications?

Alternatively, maybe the better argument strategy would be to disagree with Ed about the merits of the argument rather than suggesting that the problem is his intelligence.

I do not think Ed Whelan is stupid. But it is fairly obvious that the content of the last two paragraphs is dependent on the content of the first. Here is that first paragraph, which to some extent determines the rest:

In 1981 Mr. Whelan graduated with honors from Harvard College and was inducted into Phi Beta Kappa. He received his J.D. magna cum laude in 1985 from Harvard Law School[.]

This tells us the following:

1. Mr. Whelan got a high SAT/ACT score and had a high GPA in high school.
2. At Harvard, he earned a GPA high enough to be inducted into Phi Beta Kappa.
3. He got a high LSAT score.
4. He had a high GPA at Harvard Law.

I know some members of Phi Beta Kappa who are not particularly bright. Just hard workers. I would not consider membership proof of intelligence. Also, one can have a high GPA without meeting the requirements, due to picking the wrong courses. That leaves us with:

1. Mr. Whelan got a high SAT/ACT score and had a high GPA in high school.
2. At Harvard, he earned a high GPA.
3. He got a high LSAT score.
4. He had a high GPA at Harvard Law.

One could say that standardized test scores don't reflect IQ. They reflect test-taking skills. And that the tests were more culturally biased back in the 80s, etc. And the standards for admission to Harvard were lower back then, as there was less competition.

But I think the argument is that Whelan has been a diligent student for his entire life and he tends to perform well on standardized tests. That doesn't mean he is particularly bright, nor does it mean his post isn't littered with nonsense. Mr. Whelan could be a random fluctuation who has exploited his credentials well because of his hard right-wing politics and their fit with the ascendancy of originalism in the 80s.

Clearly he is smart enough to have performed well enough to get where he got; that's axiomatic. But whether he's smart enough to take potshots at Richard Posner and draw blood is another question.