PRESTOPUNDIT

Well, I blew up a long piece on Judge Richard Posner's new book LAW, PRAGMATISM, AND DEMOCRACY. There is a review of the book here. Quotable:

Posner’s legal pragmatism recognizes fewer theoretical constraints on judicial power than does conventional constitutional theory. He admits that “ideology, in the sense of moral and political values that transcend the merely personal or partisan, is not an illegitimate, but an inescapable, feature of legal judgment” (p. 353), and he concedes pragmatic adjudication “will inevitably be based to a disquieting extent on hunches and subjective preferences rather than on hard evidence” (p. 126). The discretion of pragmatist judges is limited not by fidelity to interpretive theory or traditional legal constraints, but by “psychological, career and institutional factors.” Pragmatists accord “due respect for rule of law virtues;” however, this respect is practical, not principled, and sometimes outweighed when social change is necessary (p. 61). Posner acknowledges the practical necessity “for deference to democratic preferences and modesty about the power of legal reasoning to put judges in touch with the truth.” Such constraints “limit the discretion even of the perfectly self-aware judge.” But these constraints are practical and political, not theoretical.

And this:

Posner’s applications of legal pragmatism are equally provocative. He considers the Supreme Court’s opinion in CLINTON v. JONES “notably unpragmatic.” Clinton should have been granted official immunity from the civil suit because “a president’s extramarital sex life is a politically explosive subject.” To Posner, “recognition of this fact should have been at the center of the Court’s consideration, even though it was a fact without conventional legal significance” (pp. 318-319).

I find Posner's illiberalism and his disrespect for the rule of law nothing less than shocking. But this sort of shock is by now actually boring. It's been over a hundred years since the illiberal historicism of Holmes and more than 50 years since the illiberalism "legal realism" of Douglas. The wonder is why we allow these unelected rulers their power -- when they so disrespect the limitations on arbitary whim presupposed by the liberal principles of our legal and political system. I see no problem with the impeachment of such folks on the ground that they have knowingly violated their constitutional oath of office.

Here is the official description of Posner's book:

A liberal state is a representative democracy constrained by the rule of law. Richard Posner argues for a conception of the liberal state based on pragmatic theories of government. He views the actions of elected officials as guided by interests rather than by reason and the decisions of judges by discretion rather than by rules. He emphasizes the institutional and material, rather than moral and deliberative, factors in democratic decision making.

Posner argues that democracy is best viewed as a competition for power by means of regular elections. Citizens should not be expected to play a significant role in making complex public policy regarding, say, taxes or missile defense. The great advantage of democracy is not that it is the rule of the wise or the good but that it enables stability and orderly succession in government and limits the tendency of rulers to enrich or empower themselves to the disadvantage of the public. Posner's theory steers between political theorists' concept of deliberative democracy on the left and economists' public-choice theory on the right. It makes a significant contribution to the theory of democracy--and to the theory of law as well, by showing that the principles that inform Schumpeterian democratic theory also inform the theory and practice of adjudication. The book argues for law and democracy as twin halves of a pragmatic theory of American government.

UPDATE: There's also a new review of WILD BILL: THE LEGEND AND LIFE OF WILLIAM O. DOUGLAS by Bruce Allen Murphy. I'm not very proud of the fact that this man is from Eastern Washington.