Re: Judge Posner’s Weak Mea Culpa

by Ed Whelan

In my post last Friday in which I wondered why anyone should credit Judge Posner’s new position on voter-ID laws, I referred to, but explicitly passed over, some “cross-cutting complications” on whether a judge’s confession of his own judicial errors is welcome. In an excellent column today, the Washington Post’s Charles Lane explores one of those complications and concludes that Posner’s comments violate the Code of Conduct for Federal Judges:

His comments amount to intervention in a live political, and legal, issue, cloaked — whether or not he intends it — in the authority of his judicial office. Indeed, his comments carry the authority of someone who previously considered the matter in court and has now switched sides. It’s as if Harry Blackmun, the author of Roe v. Wade, came out against abortion rights while still a justice.

It doesn’t help matters that Posner’s confession of error contained a gratuitious slap at the losing lawyers or that it hinged on a vague notion of how the Indiana law, and others like it, are now “regarded.” As it happens, opinion polls consistently show that voter ID laws are popular among voters of both parties.

I don’t think that Lane’s analysis applies to comments by a judge that repeat what he has said in his judicial opinions.

(On the dubious merits of Posner’s change of mind, read Hans von Spakovsky’s NRO essay from last Friday, “Right the First Time.”)

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