More On Judicial Transparency

We’ve written a number of times about the benefits of judicial transparency.  In an interview published in the July 2014 issue of the ABA Journal, U.S. Court of Appeals for the 7th Circuit Judge Richard A. Posner weighs in.  Judge Posner is a prolific, well-respected member of the federal judiciary.  His books include Economic Analysis of Law, The Economics of Justice, The Problems of Jurisprudence, Overcoming Law, The Problematics of Moral and Legal Theory, and How Judges Think, and he has written a number of articles in journals and popular press.  He is also faculty at The University of Chicago School of Law.

In 2012, Judge Posner wrote an article in the New Republic, titled The Incoherence of Antonin Scalia, which reviewed Justice Scalia’s book Reading Law.  On the heels of that article Judge Posner explains his views on judicial transparency:

Judge Richard Posner at Harvard University - Courtesy of Chensiyuan

Judge Richard Posner at Harvard University – Courtesy of Chensiyuan

I don’t understand why the judiciary should be the most secretive branch of government. The public probably knows more about the CIA than about the judiciary. There are few secrets in the executive branch. Everybody leaks. And Congress—they’re totally exposed. But judges have the most extraordinary gift for secretiveness. Why should that be? Why should judges be able to conceal so much from the public?

But Judge Posner makes clear that judicial transparency is not “airing dirty laundry”:

[I]t’s about the public having a realistic understanding of the strengths and weaknesses of the judiciary.

He believes that judges are good at impartiality (not holding an obnoxious lawyer against the litigant), but they are not good at preventing their own ideology and personal experiences from influencing their decisions.  According to Judge Posner, “[t]hat’s the real danger.”  And he blames the lack of information to make informed decisions (having to rely on the facts presented) for judges falling back on deciding cases based on how they “‘feel’ about the case.”

LPR applauds Judge Posner, and we hope that with the example of a senior, well-respected judge opting for transparency, more judges will follow.  Legal consumers and the public can only benefit from a more transparent judiciary.

Editor’s note: We are happy to report that U.S. District Court for the District of Nebraska Judge Richard G. Kopf, author of Hercules and the Umpire blog, has decided to resume his postings.  LPR blogged earlier about Judge Kopf’s stepping back from the blogosphere after his post suggesting the U.S. Supreme Court “stfu” and the ensuing controversy.  You can read his reasoning in his recent post, “We can easily forgive a child who is afraid of the dark. The real tragedy of life is when men are afraid of the light.”  Welcome back, Judge Kopf.



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