The Rantings of the Legal Mind

If you haven't heard of Circuit Judge Richard Posner, be ready for an interesting lesson. he is supposedly one of the most brilliant legal minds alive today, yet he is a case study in extreme dichotomy. From WikiPedia: "His parents were affiliated with the American Communist party, and in his youth and in the 1960s as law clerk to William J. Brennan he was generally counted as a liberal. However, in reaction to some of the perceived excesses of the late 1960s, Posner developed a strongly conservative bent. Today, although generally considered a man of the right, Posner's pragmatism, his qualified moral relativism and moral skepticism, and his affection for the thought of Friedrich Nietzsche set him apart from most American conservatives. Among his other influences are the American jurists Oliver Wendell Holmes, Jr. and Learned Hand." Ronald Reagan appointed Posner to the Seventh Circuit in 1981. He served as Chief Judge of that court from 1993 to 2000. His political and legal views are very diverse; some of his opinions in review: He opposed the right of privacy in 1981, arguing that the kinds of interests protected under privacy are not distinctive. He contended that privacy is protected in ways that are economically inefficient. Posner also engaged in a debate on the ethics of using animals in research with the philosopher Peter Singer in 2001 at Slate magazine (VERY unusual for a sitting judge). He argues that animal rights conflicts with the moral relevance of humanity, and that empathy for pain and suffering of animals does not supersede advancing society. He further argues that he trusts his moral intuition until it is shown to be wrong, and that his moral intuition says "it is wrong to give as much weight to a dog's pain as to an infant's pain." This would seem to put him staunchly in the current Republican camp; especially his trust in his "moral intuition", which sounds much like Bush's "instincts". However, he has written several opinions sympathetic to abortion rights, including a decision holding "partial-birth abortion" constitutionally protected in some circumstances. He has also written favorably of efficient breach of contracts. Breach often leads to a worse result for society: if a seller breaches a contract to deliver building materials, the buyer's workers might go idle while the buyer looks for a replacement. That lost productivity lowers society's net worth. An efficient breach would be a situation in which the gains are higher than the losses, and the seller is better off for breaching even after paying damages to the buyer (for instance, if some third party had a much greater need for the building materials, and was willing to pay a higher price for them). Even more, he has characterized the U.S.'s War on Drugs as "quixotic." In a 2003 CNBC interview, he discussed the difficulty in enforcing criminal marijuana laws, and asserted that it is hard to justify the criminalization of marijuana compared to other substances. This wide range of viewpoints makes him a very interesting case. He has recently written a book, Not a Suicide Pact: The Constitution in a Time of National Emergency, which, in part, analyzes the President's moral obligation to enforce or circumvent the law as he sees fit. The New York Times article here talks about this particular issue as well. It speaks about Posner's position on the President's right to authorize torture, suspend habeas corpus, etc: Take the power to torture a suspect or to suspend the right to challenge a detention through a habeas corpus petition. Posner thinks these powers are sometimes necessary, and chides civil libertarians for asserting otherwise. But that doesn’t mean he wants the legislature or the courts to give them to the executive ahead of time. Instead, he says, government officials should make do without legal cover. That way, “they will be reluctant to act unless a powerful moral justification, overriding the infamy of a legal violation, can be advanced.” Posner says he’s asking for a form of civil disobedience: “While the term is usually applied to private individuals who deem it their moral duty to disobey positive law, there is no reason why it cannot also be used of public officials who do the same thing,” he writes. This seems to be a pragmatic approach on the surface - one would expect a pragmatic position from this complicated judge. However, the judge neglects one simple truth which I find very important in this case - there will be no "trial", in any real sense, to review the actions of the government officials after the fact. This type of hindsight is reserved only for the losing side - if the US is not defeated and therefore put on trial by another entity which caries authority over us, the trial will be, at best, a farce and a show. Let me explain what I mean. When the Nazis were on trial at Nuremberg, one of the most effective defenses to the charge of "war crimes" was to show that the Allies had engaged in the same behavior. This seems ancillary to the actual question; just because someone else had done it didn't make it OK. However, it was understood that if the Allies had done it, it couldn't possibly be a war crime - the Allies had won, after all, and were therefore the moral oversight to the proceedings. I would expect much the same result of Bush were placed on trial next to Saddam, the Taliban, or any other organization who was accused of torture, Geneva Convention violations, or other crimes. The US would use the things that Saddam and the Taliban did that were different than what Bush did to convict "the enemy", but other actions would become the de facto standard procedure for dealing with "the new threat of terrorism". Bush may receive a public shaming by sanctimonious members of the judiciary, but no real punishment. The reason for this is simple: The judiciary cannot FORCE the President to do anything - hence, they have no authority except perceived authority. To have the power of force, the judiciary would need a police force, army, prisons, or some other means of enforcing their decisions. This power, however, lies solely with the executive branch. The President just happens to be the head of that branch. Need I say more? There is also the question of allowing the ideals of one person to control the conduct of an entire country. In 1215, the Magna Carta was signed in England to limit the power of the King. The Magna Carta required the king to renounce certain of his rights, respect certain legal procedures and accept that the will of the king could be bound by the law. It explicitly protected certain rights of the King's subjects, whether free or not (read- resident or alien), most notably the right of habeas corpus. Posner's opinions on this are contrary to the rule of law that was established 800 years ago in the Magna Carta, which has been the basis of civilized society and constitutional law since 1215. Posner, to me, has a very academic and altruistic view of certain portions of the law. The thought that we can allow the President to exercise his own moral judgement on matters of the law, and then review his decision later, is a major step backwards in the equalization of all people. Although an excellent theory, it assumes that the officials in question have the greatest moral integrity; the leadership must be pursuing altruistic morality, without the introduction of alterior motives or conflicting personal desires. What are the odds we can trust our current leadership with this?