Bench Memos

More on Judge Posner’s (Now Disavowed?) Mea Culpa on Voter ID Laws

For those interested in another round of Judge Richard Posner’s selfimmolation, here’s the latest bizarre twist concerning (to quote his words from pp. 84-85 of his new book Reflections on Judging) his “plead[ing] guilty to having written the majority opinion (affirmed by the Supreme Court) upholding Indiana’s requirement that prospective voters prove their identity with a photo ID”: In a post for the New Republic, Posner now contends that he is not “publicly recanting” his vote and that he has not “switched sides.”

I agree with election-law expert (and voter ID-law critic)* Rick Hasen, who finds Posner’s latest account “incredible.”

For starters (as Hasen points out), in a recent HuffPost Live interview, Mike Sacks, after quoting the passage in Posner’s book, specifically asked Posner whether he thinks that he “got this one [the ruling in the Indiana voter ID case] wrong.” Posner’s response (at 9:08 of the interview) begins: “Yes. Absolutely.” He adds that he thinks the dissenting judge “was right.” (See Hasen’s post for the remainder of the response, none of which contradicts these excerpts.)

In his new post, Posner contends that in his book “I did not say that my decision, and the Supreme Court’s decision affirming it …, were wrong, only that, in common with many other judges, I could not be confident that it was right.” Oh, really? Why then did he “plead guilty”? How else should that phrase be understood?

Posner also doesn’t even acknowledge, much less try to explain away, his HuffPost Live comments. (Note to New Republic editors: Time to wake up and to demand minimal competency from Posner.)

More broadly, Posner contends that the point he was making in his book is that “in many cases judges can’t have any confidence in the soundness of their decisions if they do not have empirical data concerning the likely consequences of deciding the case one way rather than another.” I would argue instead that Posner’s vacillation and contradictions on the Indiana voter ID case provide further evidence that he is wrong to advocate an open-ended judicial approach in which it is desirable to have the soundness of a decision turn on the judge’s estimation of its “likely consequences” (together with the judge’s “moral feelings, common sense, sympathies, and other ingredients of thought and feeling that can’t readily be translated into a weighing of measurable consequences”).

* I initially referred to Hasen as a “voter ID-law critic” in order to convey his disapproval of Posner’s opinion in the Indiana case. But that shorthand turns out to be inaccurate, as I’ve been reliably advised that Hasen supports national voter ID combined with universal voter registration conducted by the federal government.


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