Richard Posner Biography Takes on the Strengths and Weaknesses of the Federal Judiciary in the USA

Judge Richard Posner is the most cited jurist of our era, so that a now published Oxford University Press biography of Posner by William Domnarski is of course of great interest to the legal community -- especially as it concentrates quite a bit on the Federal judiciary of the United States, which in recent years, mostly because of the applied anti-judicial antics of political organs, has ceased to be the bright model for other nations that it used to be.

Debra Cassens Weiss at the ABA Journal whets our reading appetite through her headline that Posner says Supreme Court is 'awful,' top two justices are OK but not great".

Weiss writes that:

"Posner said “probably only a couple of the justices,” namely Ruth Bader Ginsburg and Stephen G. Breyer, “are qualified."

Heady stuff.

We ourselves are very critical of the judges in the Federal Judiciary, especially those who represent political, economic, social or technological "extremes" or "causes". Judges should not be extremists. Judges should be impartial.

Our major criticism is not that Justices of the U.S. Supreme Court lack "qualification". They are all certainly qualified to be judges per se.

Rather, we have difficulty accepting judges who represent fixed partisan, legal, economic or political MINDSETS -- which they exercise while judging.

We think that any judge who rises this high in the judiciary must don a cloak of impartiality and also constantly wear a cap of demonstrable decision-making wisdom (made visible to all, if possible, by the results of the decisions made), thus leaving behind the petty banalities of political partisanship and one-sided dogmatic belief in theoretical dogmas such as originalism or similar.

The job of judges in the country as a whole is to decide cases -- according to the law, not according to the law of yesterday, not according to the law that may come in the future, not according to the lowly political demands of ephemeral demagogues in Congress, but according to present law in force.

Judges can not be "figureheads" for legal dogmas or causes. A judge abandons his robe as an "advocate" when he takes a seat on the bench of a federal court. Rightly seen, he or she no longer represents any particular view or any particular cause or vested interest.

Politics, personal -- almost always -- biased preferences, theoretical legal inclinations, and similar "weaknesses" should not be part of the desired or applauded qualification spectrum. What is needed is a U.S. Constitution with a human face. Judges are the "embodiment" of the codes of law on the books.

The best judges always have a deep UNDERSTANDING of law and society, as well as a sincere appreciation of and inner consent to the essential and important role of serious jurisprudence within the body politic of the nation.

Sometimes the judges on the present U.S. Supreme Court demonstrate a lack of that comprehensive understanding, but on the whole, we think they are sincere in their work. If only they could get rid of their biased mindsets....

More often than is done, each judge should ask: WHAT IS MY JOB?
and on the U.S. Supreme Court that should extend to asking:
WHAT IS MY CONSTITUTIONAL JOB?

We think in any case that the present U.S. Supreme Court is most certainly better qualified man-to-man and lady-to-lady than the present membership of a divisive, seemingly do-nothing Congress that is not doing its job properly.

In the last analysis, however, it is the JOB of the VOTING CITIZENS to cast off their selfish voting practices, to stop voting for political candidates who only tell them what they want to hear, and to throw out of office the legislative pretenders who currently are blocking normal processes that have worked for the nation for centuries. Such people are doing far more harm to the country and its citizens than any purported evils that such Congresspersons are trying to battle or any purported good that they are allegedly trying to achieve.

People who are destroying the basic workings of the system... are destroying the system, are harming the nation in the eyes of the world, and are weakening the strength of democracy. Their perhaps supportable motivations are ... irrelevant. The ends do not justify the means. Wise men do not destroy the processes of an established judicial system for ephemeral and what often prove to be short-term political reasons.