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Editorial columns

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Judge should keep regret about rulings to himself

The ever-provocative federal appeals court Judge Richard A. Posner has made news again, this time by voicing second thoughts about his 2007 decision to uphold Indiana’s voter ID law.

The ruling was later affirmed by a 6-to-3 vote of the U.S. Supreme Court. But Posner says, in a new book, that the Indiana law was of “a type … now widely regarded as a means of voter suppression rather than of fraud prevention.”

In recent interviews, the judge chalked up his mistake to the plaintiff’s lawyers’ failure to present “strong indications that requiring additional voter identification would actually disenfranchise people entitled to vote.”

Some critics of voter ID laws may revel in Posner’s confession. I wish he’d kept his mouth shut. Not because I’m a fan of voter ID laws – I’m not – but because Posner’s casual mea culpa is improper behavior for a sitting federal judge.

The Code of Conduct for United States Judges discourages members of the bench from opining on the issues of the day. They may “speak, write, lecture, and teach on both law-related and nonlegal subjects,” as long as that doesn’t “detract from the dignity of the judge’s office” or “reflect adversely on the judge’s impartiality,” among other caveats.

Not the clearest line, to be sure – it has proved flexible enough to accommodate Posner’s vast opus, which, over the years, has included dozens of books and articles on subjects as varied as antitrust and sex, as well as a popular blog.

HuffPost Live calls Posner “the premier American public intellectual” of our time.

Yet however blurry that line may be, by publicly recanting one of his decisions while still on the bench, Posner has finally crossed it.

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.

Posner isn’t overly troubled by such considerations. “I would like to see more realism about judges,” he said. Their rulings are not Olympian pronouncements but the products of both black-letter law and personal opinion. He said he sees no reason for judges to be “bashful” about admitting mistakes.

I suppose Posner’s constant commentary makes his court more transparent, in the sense that it gives lawyers and potential litigants more information about his thinking. It’s just not the sort of transparency traditionally associated with a legitimate judicial process.

Would federal courts enjoy a better reputation if every judge spouted his views as freely as Posner does? A worse reputation? Before you answer, consider this less-publicized selection from his recent comments: “I don’t really share the widespread concern with surveillance by the NSA,” he told the Huffington Post. “If they want to read my emails, they’re welcome.”

The best judges maximize their impartiality, actual and perceived, even at the cost of self-restraint in their public statements. They do so because the public is entitled to a judicial process that earnestly aspires to fairness and objectivity, however elusive those goals might be.