Too Smart for his Own Good

Like Michiko Kakutani, I just finished reading, "Not a Suicide Pact: The Constitution in a Time of National Emergency," the latest book written by 7th U.S. Circuit Court of Appeals Judge Richard A Posner. And, like Kakutani, I thought it was a real crock.

The famous book critic says that "many of Judge Posner's arguments in this book are riddled with self-serving contradictions" and "other arguments in this volume are no more than unsubstantiated -- indeed, highly dubious -- assertions... By the end of this chilling book," Kakutani writes, "the reader realizes that Judge Posner is willing to use virtually any argument -- logical or not -- to redefine constitutionally guaranteed rights like freedom of speech during wartime." She is right. There is something chilling about a leading (and profilic and influential) federal appeals court judge disemboweling the judiciary (in theory, anyway) at a time in our history when we have a chance to finally do right what we have failed to do well during previous times of crisis. In other words, just because our judiciary endorsed shameful things during the Second World War (the internment of Japanese-Americans comes to mind) doesn't mean it has to endorse shameful things now.

Judge Posner lost me on page 6 when he wrote: "Indeed, it is arguable that we have lost ground since 9/11-- that the spectacular success of the 9/11 attacks did more to turn the Muslim world against the West than the vigorous military and police response to Islamist terrorism has done to weaken the terrorist movement." The lack of any reference here to the our military mission in Iraq, and its concomittant impact upon our military strength, and the intensity of the insurgency there, and the way the war in Iraq has emboldened terrorists, signals to me a level of incomplete analysis that poisons everything else the judge has to say for the rest of the book.

By most accounts, Posner is a good judge. And he is clearly a sharp writer. Problem is, at least with this book, that he seems to have put rhetorical flourish ahead of legal sense. And the result, as Kakutani bravely notes, is not just a mess but a disturbing one that portends poorly for the future balance between national security and personal freedom.

By Andrew Cohen |  September 19, 2006; 12:30 PM ET
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"Activist"--the use of self-serving specious agruments to make one's case. Posner is either intellectually obtuse, or he's as cynical as they come. Either way he's one scary example of the federal judiciary.

Posted by: Dave, Freeport, IL | September 19, 2006 06:15 PM

Here is one of my favorite gems from Posner:

""coercive interrogation up to and including torture might survive constitutional challenge as long as the fruits of such interrogation were not used in a criminal prosecution."

In other words, Posner uses a rule of evidence to justify torture. This is one is worthy of Stanley Kubrick.

Posted by: MC | September 19, 2006 09:43 PM

Judge Posner must be bored with being a judge. He engages in too many diversions from what should be a full time job. Yes, he is smart. Why does he remain on the bench? Because that gives him the power to express his convictions, whatever the subject. Who would listen to a former judge Posner? Frankly, who pays that much attention to him now that he has written on so many topics and has a co-Blog. Perhaps he hopes to live as long as Justice Holmes, hoping that longevity will give him credibility and eternal fame. I wonder how he might fare if he ran for U.S. Senate; but would voters stay awake? Now that would be TORTURE!

Posted by: Shag from Brookline | September 20, 2006 06:45 AM

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