Judge Richard Posner — who’s arguably America’s most famous judge after the Supreme Court justices and Judge Judy — made the admission in his recent book and in an interview with HuffPost Live. Posner now concedes that laws like Indiana’s that require government-issued IDs to vote are tools to keep poor minorities (who might not have IDs) away from the polls.
Here’s what he wrote in his book, courtesy of the Daily Beast:
I plead 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 — a law now widely regarded as a means of voter suppression rather than fraud prevention.
There are two elements to the debate over Judge Posner’s admission that he’s “guilty” of writing the Indiana voter ID opinion for the U.S. Court of Appeals for the 7th Circuit in 2007.
First, people wonder why Judge Posner couldn’t understand back in 2007 that Republicans liked to enact voter ID laws to disenfranchise likely Democrats. A second critique is that judges shouldn’t go around publicly renouncing their old opinions.
To the first point, Judge Posner told The New York Times last week that the outcome of the Indiana voter ID case shows that judges often “aren’t given the facts that they need to make a sound decision.” Posner also said the judges didn’t have “the information” necessary to strike a good balance between preventing fraud and protecting voters’ rights. This comment irked Paul Smith, a partner at Jenner & Block who represented the plaintiffs fighting the voter ID law.
“The information provided was enough for the late Judge Terence Evans, dissenting from Judge Posner’s decision, to say quite accurately: “Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by folks believed to skew Democratic,” Smith wrote in a blog post.
Writing for the Washington Post, Yale Law grad Charles Lane attacked the very fact that Judge Posner was publicly apologizing for an opinion he wrote — especially such a political one. Judges shouldn’t “engage in the hurly-burly of political argument,” Lane wrote.
“It fosters the impression, corrosive to the rule of law, that there is no difference between a judicial process and a legislative one,” Lane wrote.
This column struck a chord with another federal judge: Richard Kopf, who blogs at Hercules and the Umpire.
“While I sure as hell don’t compare myself to Judge Posner in any form or fashion, I would appreciate it if readers would review Mr. Lane’s piece about Judge Posner’s penchant for being public and apply Lane’s critique to this blog,”Judge Kopf wrote this week.
For his part, Judge Posner didn’t seem too bothered by Lane’s criticism. Judges shouldn’t be “bashful” about stepping forward and admitting their mistakes, Posner told Lane. University of California at Irvine law professor Richard Hasen has also made this point, applauding Posner’s decision in a column in the Daily Beast.
“Judge Posner now is ready to err on the side of enfranchisement,” he wrote. “That’s a good change.”
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