Here Comes the Judge, Part I

THE OPEN MIND
Host: Richard D. Heffner
Guest: Judge Richard A. Posner
Title: “Here Comes The Judge”
VTR: 1/30/02

I’m Richard Heffner, your host on The Open Mind. And today’s is the second of two programs with Judge Richard A. Posner of Seventh Circuit Court of Appeals in Chicago. Identified in a New Yorker profile a few months ago as, “a flamboyantly candid judicial activist.”

Well, now perhaps you confirmed that for yourselves last time when we discussed my guest’s recent Public Intellectuals, A Study of Decline, published by Harvard University Press, and characterized in a Los Angeles Times review as “cornering the market in chutzpah.”

Whatever. As the kids say. There’s so much more now that I’d like ask Judge Posner about concerning the law and lawyers in America.

And, if you don’t mind, Judge Posner, I’d, I’d like to begin with a question that came up in a program with Floyd Abrams …

POSNER: MmmHmmm.

HEFFNER: A prominent attorney not so long ago, “why lawyers lie”. And it sort of stems from the comment that you made about not understanding why … knowing that someone is guilty … isn’t really enough.

POSNER: MmmHmmm.

HEFFNER: Why do lawyers lie? Why do they say things that they must know are not true, or exaggerate the truth.

POSNER: Well, the nicest face you can put on it, is what an English judge said that that, “the role of the lawyer is, not as a counselor, but in the adversary process as a trial lawyer. Because the lawyer isn’t going to lie if he’s just trying to advise you on what you should do, you know … how much tax you owe, or something. But, the lawyer as a mouthpiece, as a spokesman for the client. And what this English judge said is that the lawyers job is to say what the client would say if the client were learned in the law. So, if you think that anybody who’s accused of crime, or who claims that his legal rights have been violated in someway or is a defendant in a civil suit … whatever has dragged him in before the court, the lawyer is simply going to be his, sort of articulate spokesman. And since he would (the client) … if he knew how to talk to judges and jurors, would be constantly shading the truth to his own advantage, the lawyer does likewise. Now there are ethical limitations on what lawyers can do. They’re not allowed to instruct their clients to lie. And in fact technically, if you know your client is lying you’re actually supposed to withdraw from the case. But the fact is, of course, lawyers, like actors almost are constantly advocating positions that they know or should know are unsound, or even preposterous.

HEFFNER: Like actors.

POSNER: Like actors.

HEFFNER: That’s an interesting …

POSNER: Like actors because of course the lawyer, to be effective, wants to give the impression of sincerty. He doesn’t want to wink at the court [laughter] to make clear his understanding that what he says is, is just nonsense. But, but I have found that’s disturbing as a judge to realize that the, the lawyers arguing with such passion before you often either know that what they’re saying is, is untrue or misleading. Or else they have so identified with their client that they’ve lost all independent thought and become kind of mindless agents for the cient.

HEFFNER: Now is this exacerbated in your estimation by the adversarial system or procedure?

POSNER: Yes. Because in the adversarial system the, the lawyers regard themselves as contestants in a game, and they see the judge as an umpire/referee. So the fact that there’s a umpire in football, or basketball or baseball doesn’t … it curbs the competitive activity to some extent … there are certain moves that are ruled out of bounds. But, nevertheless, it doesn’t really diminish the zeal with which the teams go at each other. So similarly in our adversary system the fact that the judge is there to make rulings and try to maintain order doesn’t minimize the adversarial fury with which the judges … with which the lawyers go at each other. Now it’s very different in a system … inquizzatorial system that they have in Europe. Or even the version of the adversary system that they have in England, where the judges take a much more active role in the procedure and curb the lawyers combat enthusiasms much more vigorously than our judges do.

HEFFNER: Which would you prefer?

POSNER: Oh, actually I think … I don’t think … I think the answer really depends on the particular culture of the society. And there isn’t one … neither is categorically superior. In the type of system that they have … the type of inquizzitorial system has, for example, a much larger number of judges relative to lawyers. Because the judges exercise a kind of control that our judges don’t. Well, in American culture with it’s distressed officials, it’s hard to imagine multiplying the judges, you know, tenfold and cutting back on the lawyers correspondingly

HEFFNER: Do you think that would be a way of achieving what I’ll call “justice?”

POSNER: There is a widespread view that if you’re guilty you’d rather be tried in the United States. And if you’re innocent, you’d rather be tried in Europe. [Laughter] Becuase our system is believed to have a higher rate of error. So … because it is more of a contest and less of a, sort of … more or less disinterested inquiry into the truth.

HEFFNER: You know, when this program began 46 years ago at the first summer hiatus WGBH in Boston asked me if I’d come up while the program was off the air in New York and put on the program. And I said, “Well, we can’t use the same title, so we called it Search for Truth,” …

POSNER: MmmHmmm.

HEFFNER: And Paul Fruend was one of the guests. And after the program he said to me, “Mr. Heffner, you’re an innocent, aren’t you? You really believe that the law is about a search for truth. In this country it is not.”

POSNER: Aha.

HEFFNER: And that remains.

POSNER: Aha.

HEFFNER: So incredibly disillusioning. But I gather from what you say …

POSNER: Yes.

HEFFNER: … Paul Fruend was quite correct.

POSNER: Well, it was interesting because I knew Fruend quite well when I was a student. And I don’t think he went public with what said to you …

HEFFNER: No. No, this was …

POSNER: So there has been …

HEFFNER: … this was afterwards.
POSNER: … so there has been … you know, there’s a kind of conspiracy of silence about the true nature of the legal system as of most insitutitons. You know they’re masked from the public by the insiders.

HEFFNER: And you’re feeling, if I’ve not mistaken you … mistaking you … is that our approach is appropriate to our history, to our civilization, to who we are as people.

POSNER: Yes. Although I think it could be improved. I think we go, I think we go too far in making it a, a game with rules that actually obstruct the search for truth and that make the outcome of the trial much less predictable than it ought to be.

HEFFNER: Well, going back to that quote that I offered in the first program we did. That wonderful, wonderful quote in which you said, “I’m not fully …”, this was in The New Yorker profile … “I’m not fully socialized into the legal profession. I’m like an imperfectly housebroken pet. I still have difficulty understanding …

POSNER: [Laughter]

HEFFNER: … and this is something that most people get over in their first two years of law school …

POSNER: Two weeks of law school.

HEFFNER: … two weeks of law school … I said it again … maybe I think they should get over it in the first two weeks …

POSNER: [Laughter]

HEFFNER: … of law school. “Lawyers spouting things that they don’t believe. If someone is obviously guilty, why do you have to make to make all this rigmarole?”

POSNER: Yes.

HEFFNER: Now, is that something you would reflect upon and repeat?

POSNER: Yes, now …

HEFFNER: Rigmarole. What do you mean by “rigmarole?”

POSNER: Well, by rigmarole I mean the many procedural hoops that have to be jumped through before an obviously guilty person can be found guilty. Or for that matter an obviously innocent person can be found innocent. Becuase these procedural hoops are also the hoops that someone who has been convicted, maybe erroneously, maybe the time for appeal has expired and now resorts to habeus corpus proceedings in an effort to get his conviction overturned. Now he’s going to have to jump through enormously complicated hoops in order to be vindicated. So, it’s not just a matter of … I mean I think the guilty benefit more than the, than the innocent from this process, but the fact is it’s an obstacle to anybody to have to go through so elaborate a procedure when the actual issues, the issue of guilt and innocence may be, may be quite straightforward.

HEFFNER: What would you do to mitigate those circumstances?

POSNER: Well, I’d like to see the judges, because a great deal of the procedural superstructure of our criminal justice system, but also of our civil justice system is created by the judges. This is judge made law interpreting vague Constitutional provisions, sometimes vague statutory provisions. So what the judges have made, the judges can unmake by I think being a little more realistic and practical about the … what is at stake in these proceedings … and dispensing with, or at least modifying, cutting back on some of these procedural rules that are, you know, kind of traps for the lawyers, for the prosecutors. There’s no reason … it’s a curiosity that … I mean it’s more than curious, it’s kind of a scandal. The most complicated body of law that judges in the United States administer, not the tax code, or the anti-trust laws; or anything like that. It’s the rules governing criminal appeals and criminal and … you mentioned habeus corpus, these are sort of post conviction challenges to a conviction. And this is enormously complicated even though once a person is convicted and imprisoned, he no longer has a lawyer … and nevertheless he may have a meritorious claim that his convictiion was unjust, maybe his lawyer at trial was incompetent, but now he’ll have to go through the habeus corpus process which is immensely complicated, he will not have the aid of a lawyer usually. And if he trips over some of the procedural prerequisites to maintain such challenges, then he’s out. So I don’t, I don’t see why it has to be so complicated. I mean the basic question is whether a person is guilty or innocent. And yet we get deflected into all sorts of questions having to do with police conduct, character of searches, whether a person’s confession implicated somebody else, and whether the confesion was voluntary and so on. And so, there’s are just a lot of side issues that gum up the works.

HEFFNER: Your feeling then about whether the constable has blundered, is that it gets in the way of justice being done?

POSNER: Yes. There are very complicated rules about when you have to get a search warrant and when you don’t and the rules tend to be porous. So and the result is that there is a great deal of hypocrisy about the system … although there’s a lot of talk about, you know, you can’t arrest a person without a warrent, you can’t arrest and/or search a person without a warrent. In fact there are so many exceptions that very few, even lawful arrests and searches are conducted persuant to warrant. All sorts of bizzare things … so suppose for example, a person is arrested for speeding, and something a little more serious than speeding … maybe he’s arrested and he doesn’t have a license. So the police are going to take him off to be booked. And then the question, “what happens to his car?” Well, the police have to impound his car and then they’ll search it … and they do what’s called an “inventory search” so that they can make sure that when they return the car to him, they have accounted for its contents. But, of course, what they realy want to do in the inventory search is see if there’s, you know, contraband, drugs or something. So you don’t need a warrent for an inventory search. So, it’s just immensely, immensely complicated and if the police are not clever, if they don’t know how to avoid these various obstacles, than a guilty person may, may be sprung. I don’t know what the guilty make of that, to find out that through some incomprehensible procedural technicality they’ve gotten away with their crime.

HEFFNER: Do you think there’s too much of an emphasis, in this country, on what we generally call “due process”.

POSNER: Yeah, I think there is. I don’t think it’s going to change in the light of the, you know, concern about terrorism. Because it’s when the country, it’s when the country feels safe that it indulges in the, in all these procedural safeguards, and in elaborate rhetoric of, of liberty. And when the country feels endangered then it realizes that, that really these are frills and luxuries. I mean obviously you have to have fundamental procedure protections so that the police and prosecutors don’t run wild and intimidate the population. But we’ve gone way, way beyond that into, you know, an area of these … well, it gets back to this socialization comment. It seems to me a good test of whether a legal rule makes sense is, “could you explain it to a lay person in a way that would make sense to the lay person?”. Could you say, “Well, we have this rule, not because we’re just lawyers iwth complicated minds, but this really serves a social function and we’ll explain what the social function is. And if you’re convinced by that then I’d say, “well, that’s a good rule”. But if I can ony explain a rule by saying, that “this was the way it was done in the 11th century, and you know we’re very conservative methodology in law, so we still do it.” Or “we do this because we have a kind of religion of procedural ponctilliousness, something like this. Or if I say, ‘I can’t explain it to you because you’re not a lawyer; only a lawyer could understand.” Those would be examples of … if that’s the best sort of thing you can say about a legal rule, that’s a good indication it’s a bad rule. So I’d like to see the judges and the legislatiors and the people who write about law to be more practical and say, “Law’s a social tool; and it a particular rule is not serving an important social purpose, it ought to be changed.”

HEFFNER: That more practical, your pragmatism, your interest in pragmatism relates to your interest in John Suart Mill, I presume. And …

POSNER: Yes, well he is certainly …

HEFFNER: … that’s why he is so intellecutally satisfying.
POSNER: Yes. Yeah. Yeah. And this is not the way lawyers like to think and my advocacy of, of legal pragmatism has, has met with a lot of criticism in the legal profession because lawyers don’t want to think that way. That’s, that’s the rigmarole that has always troubled me. And I’ve never gotten over it, even though I’ve been a judge for 20 years now. And I’ve been in the legal profession, you know, 40 years.

HEFFNER: But you know … when before you used as a example, procedures, process from the 11th century … what about process from the 20th century? Or from fairly recent judicial decisions, how free do you feel the judiciary must be to reverse itself, not to stand in its earllier decisions?

POSNER: Oh, I think it … I think it, I mean clearly there is an interest in continuity. People adjust their affairs, their activities and so on to the law as it is. And if it’s changed suddenly and unpredictably, you know, you’re pulling the rug out from under them, and you’re destroying significant ???? interests, I think there has to be a kind of conservativism or “stand pat” attendancy in law, that’s fine. But when legal rules are clearly disfunctional, then it’s time for them to be changed.

HEFFNER: Do you think that judgment can be made outside the realm of political judgement?

POSNER: Well …

HEFFNER: Dysfunctionality of legal procedures?

POSNER: Yes. Well, I think many of these are political judgements in the sense that the people for whom … let me take something like the American Civil Liberties Union. There’s a kind of … the American Civil Lliberties Union represents a position on the political spectrum … it will … it takes the extreme position that civil liberty decisions are kind of ratchet(???) … every decision that expands civil lliberties becomes another sacred writ, and every decision that retrenches or fails to expand is open to re-examination. So, I regard their position as political, not as something that’s rooted in the Constitution, it’s just a political point of view, and I don’t think there’s anything wrong with judges saying, “Well, you know, we understand the passion with which you defend the Warren Court’s decisions, but we think it’s gone too far. We have too serious a crime problem, we have too serious an international terrorism a problem. Or we just … our legal procedures are just too clotted, too expensive, too complicated, so we’re going to re-trench.” And I think that’s the sort of thing courts, especially the Supreme Court are entitled to do.

HEFFNER: It’s interesting, you mentioned the Warren Court. Is that the breaking point for you … in a general way in which you would say perhaps a pragmatic approach, a modern approach, a functional approach, rather than a disfunctional approach would … where you would draw the line.
POSNER: Yes. I think the Supreme Court in the Warren period … roughly from late fifties to late sixties really ran wild with a particular vision of the Constitution that I think was far in advance of what people really know about the various social practices effected by the Warren Court’s decision. And in advance of public opinion. And so, they made the criminal justice process far more complicated than it had been. They also, you know, intervened in the political process and the reapportionment cases in a way that … I mean, you know, did sort of extraordinary things with the back of their hand. Like, untl, I think a case called Lucas in the mid or late sixties … most of the States had an upper house that was modeled on the US Senate in which representation was not based on population, but on geography, so maybe every county would have a state Senator even though the counties were of unequal population. And the Supreme Court wiped that out, said that violated the Constitution and required that state Senate districts be of equal popultion, just like House districts. So at a, you, at a stroke of the pen, they changed, you know, these historic institutions, which apparently had been working alright as far as anybody went, I mean most people were satisfied with the way the US Senate is structured and that, of course, was the model for these states. So, so that’s an example of the Supreme Court acting in the name of the Constitution, with no real guidance from the Constitution, and in the name of the Constitution to bring about significant social change without having any sense of what the consequences would be. No one yet knows what the consequences of all this reapportionment has been.

HEFFNER: That meant an activist judiciary … or an activist Supreme Court, right?

POSNER: Well, “activist” ina particular sense. Activist in the sense of stepping on the ohter branches of government and, you know, asserting judician supremacy. And actually the current Supreme Court, although more … somewhat more modest than the Wararen Court, and certainly more conservative, has been doing much the same thing in very expansive interpretation of State’s rights, in holding for example that Federal anti-discrimination statutes can’t be applied to State employees. There’s nothing directly in the Constitution on that. This is a construct, you know, like the Warren Court, it’s, it’s free interpretation. In the vision of a kind of abraction, this is called “States’ rights”, what the Warren Court did was called “equality”. But I would prefer to see the Judges holding their fire until they’re confident that a decision changing the law is going to have … good consequences.

HEFFNER: Talking about good consequences, in the minute and a half we have left, I feel constrained, must … ask you for your position, if it’s not inappropriate, on cameras in the courts.

POSNER: Oh, it’s certainly not inappropriate. I have genreally been opposed to cameras in the … in … well, let me put it this way, it seems to me, it’s a decision for every court system to make. And if, you know, the State of Rhode Island says … wants to have cameras in its courts, I don’t regard it as any business of mine. But, so far as my court is concerned, I, I would be opposed to cameras for several reasons. One, the most parochial, perhaps is I don’t really want to become a television … I don’t want to be that recognizable. Because you know judges are sometimes unpopular, we receive threats at times. So we don’t, we want to be able to walk around the streets, without people recognizing us. That’s petty. But we … one worries about the … about “acting up” in front of the cameras on the part, primarily of lawyers, but of judges also.

HEFFNER: Thank you. Thank you very much Judge Posner for joining me today on The Open Mind.

POSNER: Thank you.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. If you would like a transcript of today’s program, please send four dollars in check or money order to: The Open Mind, P. O. Box 7977, F.D.R. Station, New York, New York 10150

Meanwhile, as an old friend used to say, “Good night and good luck”.

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.

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