Oct 08

Judge Richard Posner Admits He Didn’t Decide A Case On The Law … But The Outcome He Wanted

U.S. Seventh Circuit Court Judge Richard Posner stated in interviews after he recently retired, that during his almost 36 years as a federal appellate judge the driving force of his decision making in a case was the outcome he wanted — not the applicable law, legal precedents, or constitutional considerations. The Seventh Circuit Court is based in Chicago.

Retired U.S. Seventh Circuit Court Judge Richard Posner

Retired U.S. Seventh Circuit Court Judge Richard Posner

Judge Posner was confirmed by the U.S. Senate in November 1981, and he retired with one days notice on September 2, 2017. In legal circles he was one of the most well-known judges in the U.S.. He wrote 36 books and numerous articles for legal journals and law reviews. Thirty-four of his books were published after he became a federal judge.

After he retired, the 78-year-old Posner said in an interview published in The New York Times: “I pay very little attention to legal rules, statutes, constitutional provisions. A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”

He also said that legal obstacles rarely impeded him: “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.”

Prior to his retirement, Posner had expressed similar opinions. Posner’s candor in publicly admitting his pragmatic decision making process set him apart from his colleagues. However, it is known that all state and federal judges engage in similarly pragmatic behavior — they just aren’t as honest publicly about what they do. A 2003 Northern Kentucky Law Review article — The Complicity of Judges In The Generation of Wrongful Convictions — stated about state and federal judges:

“Contrary to their carefully cultivated public image of being independent and above the frays of everyday life, judges are influenced and even controlled by powerful and largely-hidden political, financial, personal and ideological considerations.”

It is not by coincidence that judges and appeals court often make what seems to be a rationally inexplicable ruling.

Consequently, disagreements between judges about a case can be rooted in differing personal opinions, and not about the law.

Posner explained after his retirement that he decided to quit because of a major personal disagreement he had with his colleagues about one specific issue: the treatment of pro se litigants. He told the Chicago Daily Law Bulletin: “The basic thing is that most judges regard these people as kind of trash not worth the time of a federal judge.”

Posner said about six months before his retirement he “awoke from a slumber of 35 years,” and realized how badly pro se litigants were being treated.

He said a judge’s staff lawyers review appeals from pro se litigants, and their recommendations are generally rubber-stamped by the judge. Posner said he wanted to give pro se litigants a better shake by reviewing all of the staff attorney memos before a decision was made by a panel of judges about how the case would be handled. Posner said the Seventh Circuit’s director of the staff attorney program approved his proposal. However, he ran into a brick wall when the plan was presented to his colleagues: “The judges, my colleagues, all 11 of them, turned it down and refused to give me any significant role. I was very frustrated by that.”

He was being truthful about having an epiphany regarding the treatment of pro se litigants. His most recent book is The Federal Judiciary: Strengths and Weaknesses, that was published in August 2017 but written many months before. In that book Posner gave the federal judiciary an A rating for treating all litigants equally. After his awakening he would apparently give it an F rating.

Posner is writing about the mistreatment of pro se litigants in a book he is working on. He said its publication “would be particularly awkward” if he remained a judge because it “implicitly or explicitly” criticizes judges for treating pro se litigants — who are usually indigent prisoners — as second-class citizens.

Posner also told the Chicago Daily Law Bulletin that when he began thinking about the pro se issue he realized he had lost interest in being a judge: “I started asking myself, what kind of person wants to have the same identical job for 35 years? And I decided 35 years is plenty. It’s too much. Why didn’t I quit 10 years ago? I’ve written 3,300-plus judicial opinions.”

A publication date has not been announced for Posner’s forthcoming book about the federal judiciary’s mistreatment of pro se litigants.

October 8, 2017
By Hans Sherrer
Justice Denied

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