The New York Review carries a dramatic exchange between Richard Posner (the amazingly prolific, polymathic federal judge) and Georgetown law professor David Cole, who had reviewed the judge’s latest book.
Posner begins with a sentence that should shame him when he rereads it in a calmer mood: “Professor David Cole, who doubles as the legal affairs correspondent of The Nation and has received awards from the National Lawyers Guild and the American Muslim Council (founded by Abdul Rahman al-Amoudi, a supporter of Hamas and Hezbollah who in 2004 was sentenced to twenty-three years in prison for illegal dealings with Libya), is far to the left on matters of civil liberties and national security.”
This is a lob over the net that Cole smashes back in Posner’s face. “It is regrettable,” Cole writes, “that a federal judge feels the need to engage in ad hominem accusations of guilt by association rather than simply responding on the merits to a critical review of his book.” Cole (whom I happen to know and like) has received awards from conservative and non-ideological groups. Abdul Rahman al-Amoudi did not found the American Muslim Council (AMC), which in fact fired him. And “FBI Director Robert Mueller gave the keynote address at the AMC’s annual convention in 2002, and defended his decision through a spokesperson by describing the group as the ‘most mainstream Muslim group’ in the United States. Smearing Muslim groups has become an obsession for some on the right, but I expect more from Judge Posner.”
Advantage Professor Cole. But not game, set, and match. Posner’s letter–if not his book, which I haven’t read–presents an argument that Cole doesn’t fully address. Posner’s ad hominem, while shameful, doesn’t invalidate his argument. I think it goes like this:
1. The merits of a decision always depend on the consequences, measured in terms of aggregate welfare. (“Consequentialism.”)
2. The judiciary has the role in enforcing certain abstract and universal principles that are constraints on the other branches of government. The justification for this role is consequentialist. Our overall system works better when certain rules are consistently enforced.
3. However, applying a rule against warantless electronic surveillance would have consequences that are difficult to predict. Although the consequences might be positive, they might also be negative. Judges lack the expertise to make reliable predictions about such matters. Therefore, decisions should be left to the elected branches. Likewise, Posner says that he is personally opposed to banning “Islamic rhetoric,” but his reasons are consequentialist, and he would yield to better informed officials in the elected branches.
4. If judges do decide to impose general rules or principles in these areas, they impose their arbitrary wills or make implicit cost-benefit calculations for which they are unqualified. There are no right answers to controversial and contested issues involving the U.S. Constitution, because “the text is very old and to a degree obsolete, tradition is a mixed bag (the Alien and Sedition Acts and Lincoln’s suspension of habeas corpus in the Civil War are part of the tradition), the precedents are mixed as well and many Cole rejects, and ‘reason’ as lawyers use the term is in the eye of the beholder.”
David Cole provides some sharp specific answers to points in Posner’s letter, but I think he misreads the judge in part. For example, Cole writes, “As for ethnic profiling, far from criticizing it, Judge Posner’s book concludes that it is perfectly constitutional.” Right–I think Posner would say that he doesn’t favor ethnic profiling yet he believes the decision should be made by Congress and the president. In other words, it should be constitutional. Maybe that’s wrong, but it’s not illogical.
There are several options for responding directly to Posner:
1. Constitutional reasoning is not arbitrary. Yes, there are disagreements in the present, and the record of past interpretations is mixed. But the same could be said of science, yet most of us don’t conclude that scientists make merely arbitrary judgments. The exercise of legal reasoning (which is informed by, but not identical to, moral reasoning) can yield correct or incorrect results. The correct result in a case of warrantless electronic surveillance is that it is unconstitutional. (Reasons must then be given to show that this result is correct.)
2. The moral worth of a policy or decision is not measured by its consequences. What is right is the application of valid moral rules or principles. Therefore, it’s beside the point to say that free speech by Islamic radicals may undermine security (even if that were true). Security is not the point; free speech is. To make that argument plausible, one must ground freedom of speech in something deeper, such as human autonomy and dignity.
3. Perhaps there is an element of arbitrariness in judicial decisions. And perhaps the right question is whether the judiciary enhances aggregate welfare. Nevertheless, our overall system works well because of checks and balances. Both elected branches of government are prone to majority tyranny. They can undermine aggregate welfare by discounting the rights of minorities. For example, if the revolting stories of torture described by Raymond Bonner in the same issue of TNYRB are true, then clearly the CIA did much more harm than good in those cases. It is the special role of the judiciary to look out for minorities whose interests might be trampled. The judicial method is to apply abstract principles that limit government. The net results will be positive.
I have a question: Why, when judges cannot determine the consequences of their decisions in terms of aggregate welfare, should we automatically defer to legislatures? Judges always seem to do this thing: “I believe strongly that right answers are derived from X, in the event that process X doesn’t work, I defer to the legislature.” Is it assumed that legislatures are any good at these processes?
I mean, obviously, there’s the whole “seperation of powers, yada yada argument,” but isn’t it weird to be a consequentialist, and when YOU can’t predict the consequences, you defer to a body of whose capcity you NEVER inquire as to THEIR ability to effectively gauge consequences?
Right. I think the two plausible arguments for judicial deference are:
1. Majoritarianism. Congress is elected and accountable to the voters, so it has more of a right to make decisions than elected judges. But that argument overlooks majority tyranny.
2. Deliberation. Congress should be trusted because it can hold hearings and public debates and pool the deliberate reason of 535 people from around the country. But courts also hold hearings, read briefs, and discuss.
Make that three:
3. Expertise. The executive branch has lots of experts and access to secret information. Thus it will make better decisions. But why not say that the executive branch may plead its case before judges? Why must it make the final decisions without appeal?