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July 22nd, 2017

Insight

The judge's unimpeachable honesty

Glenn Reynolds

By Glenn Reynolds

Published April 16, 2017

The judge's unimpeachable honesty

U.S. Court of Appeals Judge Richard Posner has changed my mind. Up until now, I was dubious as to the notion of electing Supreme Court justices, and had never really considered electing federal Court of Appeals judges. But after reading his latest, I think that I'm now in favor of both.

The case at hand, Hively v. Ivy Tech Community College, by Posner's own U.S. Court of Appeals for the Seventh Circuit, dealt with the question of whether the 1964 Civil Rights Act, which prohibits discrimination in employment on the basis of sex, could be stretched to include discrimination on the basis of sexual orientation.

A majority of the court held that the answer to that question was yes, an answer that, while not indisputable, isn't necessarily wrong, either. In essence, the majority said, if you'd hire a man who slept with women, you have to be willing to hire a woman who sleeps with women, or you're discriminating against the woman on the basis of sex.

You can argue about that reasoning, but there's nothing outrageous about it. But then Posner chimed in with a concurrence that went much farther. According to Posner, although the drafters of the Civil Rights Act certainly had no intention of protecting gays and lesbians, and certainly wouldn't have understood the term "sex" to incorporate sexual preference, it is appropriate for courts to "update" the statute in light of modern mores, by interpreting it not as it was written, but as the needs of modern society dictate: "I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of 'sex discrimination' that the Congress that enacted it would not have accepted. . . . The position of a woman discriminated against on account of being a lesbian is thus analogous to a woman's being discriminated against on account of being a woman. That woman didn't choose to be a woman; the lesbian didn't choose to be a lesbian. I don't see why firing a lesbian because she is in the subset of women who are lesbian should be thought any less a form of sex discrimination than firing a woman because she's a woman."

Adds Posner: "We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963- 1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught."

Well. As a legislator, I'd be happy to lump the two under the term "sex discrimination." But the legislators who passed the Civil Rights Act, as Posner acknowledges, did no such thing. Is it legitimate for a court to change a statute's meaning because judges think that times have changed?

Some law professors think that Posner is behaving badly here: Prof. David Bernstein refers to Posner's opinion as "post-Constitutional," and Prof. Josh Blackman, after publishing an extensive critique, comments that "Posner is the polar opposite of a 'honest agent.' He views himself as a free agent. . . . What Judge Posner is taking advantage of is life tenure." Some of my lawprof Facebook friends even suggested that Posner should be impeached.

But in truth, Posner is mostly just being honest. Judges do what he describes all the time, they just usually cloak it behind a smokescreen of legalism that makes it at least somewhat deniable. Indeed, that's basically what the majority opinion does.

But the job of updating statutes is the job of legislators, not judges, and what legislators have over judges in that regard is that they are elected. Judges can - from within their insular world of life-tenure employment and elite-legal/academic socialization - guess at what contemporary social mores are. Legislators, by virtue of standing regularly for election, don't have to guess.

So in light of Posner's new conception of the judicial mission, I have a modest proposal of my own for updating what has become obsolete: Let federal judges stand for election themselves. I'm prepared to exempt trial judges, who have fewer opportunities for such sweeping pronouncements, and whose decisions in criminal trials, for example, probably shouldn't be affected by electoral prospects. But for those who aspire to function as Platonic Guardians, I think a little more rootedness is called for.

I therefore propose that federal Court of Appeals judges be appointed for nine years, after which they may be retained for another nine years if a majority of voters in their Circuit agree. Supreme Court Justices, on the other hand, should have to actually stand for election. Instead of nominating people and sending their names to the Senate, the president should name three candidates and put them before the people: The one who gets the most votes should get the seat, and that person, too, would serve for nine years, renewable by the voters for another nine.

It's true that this would work a major change on the federal judiciary - even greater than Posner's court has wrought on the Civil Rights Act, in fact. But it's consistent with the changing mores that have seen most states adopt some sort of election process for judicial selection, leaving the federal judiciary's undemocratic character an outdated relic of an earlier, more elitist era.

So that's my modest proposal for judicial reform. Will we see this sort of update in the future? I don't know, but I can make one very safe prediction: If it happens, it won't be because the federal judiciary ordered it. Not all updates, I feel sure, are created equal.

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Glenn Harlan Reynolds, a University of Tennessee law professor, is the author of The New School: How the Information Age Will Save American Education from Itself and is a columnist at USA TODAY.

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