Interview: Bench marks

US Court of Appeals Judge Richard Posner tells the 'Post' why he thinks human rights can be curtailed when necessary.

us supreme court 88 224 (photo credit: )
us supreme court 88 224
(photo credit: )
Here last week to take part in a debate about democracy and terrorism, US Court of Appeals Judge Richard Posner tells the 'Post' why he thinks human rights can be curtailed when necessary - and why the power of the judiciary should always be kept in check. When US Court of Appeals Judge Richard Posner addressed last week's conference on democracy and terrorism - sponsored by the Shasha Center for Strategic Studies - some members of the packed audience gasped and others purred. Hearing one of the most influential legal theorists of our time refer to judges as "glorified lawyers" with an inflated sense of self-importance will do that. Particularly if the setting is the Hebrew University. Even more so when the person at whom it is indirectly aimed is retired Supreme Court president Aharon Barak, whose own presentation - which preceded that of Posner - extolled judges as the defenders of democracy. The debate, surprisingly attended by more than 1,000 academics, students, jurists and journalists, served as a friendly follow-up to Posner's scathing review of Barak's book, A Judge in a Democracy. In the review, titled "Enlightened Despot," Posner referred to Barak as a "judicial buccaneer" - a phrase that traveled the blogosphere for days. In the backdrop of the wider controversy in this country over the power and scope of the judiciary, the topic of the Barak-Posner standoff - how democracy fights terrorism with one hand tied behind its back - was as pertinent as Barak's speech was predictable to anyone familiar with his writings. Repeatedly quoting from his own rulings, he asserted that it is the duty of the courts to uphold human rights as much during wartime as during peace, because once civil liberties are curbed, restoring them is problematic, if not impossible - like in Nazi Germany. Not so, argued Posner, citing, among other examples, the American Civil War, during which Abraham Lincoln suspended habeas corpus, the writ protecting individual liberties against arbitrary actions of the state. There is no problem, he maintained matter-of-factly, restoring human rights that are curtailed in an emergency situation once that situation passes. The irony of the whole affair was the way it began. When Hebrew University President Menachem Magidor took the microphone to introduce the moderator, former Mossad chief and current head of the Shasha Center Efraim Halevy, a young woman in the audience started to heckle the proceedings by accusing Israel of human rights abuses against Palestinians. She was subsequently joined by three other members of the crowd, strategically scattered among the throng in seats that were difficult to reach by the ushers. For the first half-hour of the session, neither Magidor nor Halevy was able to get a full sentence out. Pandemonium erupted when everyone tried to shush the hecklers, and the ushers tried unsuccessfully to coax them to leave the premises. Eventually, each had to be physically dragged out of the auditorium, screaming and kicking. It was the perfect metaphor for the dilemma under discussion, since the perpetrators were creating a violent disturbance, and the security people were unable to use force against them. Barak later commented that this was a good example of democracy in action and freedom of speech at work. Posner looked on, partly unfazed, somewhat bemused - the style and tone that would characterize our hour-long interview a couple of days later, on the eve of his return home to Chicago. "Part of what judges do to make themselves seem important is to place great emphasis on individual rights," says Posner, 69, the author of nearly 40 books - among them The Problems of Jurisprudence and Law, Pragmatism and Democracy - and a founder of the law and economics movement, which views legal issues through cost-benefit analysis. But, he says, this is not necessarily a monopoly of the Left. "Either side of the political spectrum can use the issue of rights to increase judicial power." What is the difference between human rights and, say, murder where court rulings are concerned? Why do you have no problem with the latter, yet oppose the former? There's an uncontroversial norm that murder is wrong; the meaning of murder is well understood. When there are uncertainties in a murder case, they're factual and can be resolved. Now, once in a while, with something like mercy killing or defense of property, there might be a controversy over basic issues, but that arises very rarely. So, murder is a good example of a stable body of law. Human rights, on the other hand, is a term that has no structure, no content. No one knows what it covers. It's not tethered to anything. Even in the Bill of Rights? Well, yes, the Bill of Rights is a collection of rights, some of which are clearly important, and some of which are highly contestable. The right to a jury in a criminal case is in the Bill of Rights. But is that a human right? A lot of countries don't have jury trials, including Israel. So, it may be good or bad, but I don't think it's universal. You're saying that any society can determine which rights it wants to uphold - not that rights are universal. Yes. And there are some provisions in the US Constitution which make a lot of sense, but have no real content. For example, the Eighth Amendment forbids cruel and unusual punishments. But it doesn't say what's cruel or what's unusual. So that leaves enormous discretion to the judges. What's wrong with judges having discretion? Somebody's got to have it. And in any case, isn't that their job? I don't think it's correct that some one body has to have discretion. Discretion can be shared. The American theory of government is separation of powers. This is a bit of an oversimplification, but basically, you can't do anything to a person without the concurrence of the three powers of government. There has to be legislation prohibiting or directing an act; there has to be enforcement by the executive branch; there has to be judicial review. That concurrence gives a kind of epistemic strength. You don't want to give any of these branches the ultimate authority. Yet, in your presentation at the Hebrew University, you said that until you encountered the Israeli judicial system, you thought that America had the most powerful one. Yes, that's right. How, in spite of the three branches of government supposedly keeping one another in check, does the American system result in what you consider to be an overly strong judiciary? The branches in the US are highly competitive, so each will try to exploit the weaknesses in the other. The Bush administration, for example, has pushed executive power very strongly, and has run into resistance from the courts. And when the courts push too hard, they encounter resistance. What does this mean? Here's an example: In the 1960s - and to a lesser, but still significant, extent in the 1970s - the Supreme Court was very aggressive in expanding criminals' rights by making it more difficult to convict. Congress responded by making sentences much more severe. This is how judicial power is kept in check, because even if a defendant has more rights, if he faces a very harsh sentence, he will agree to surrender those rights - in the the framework of a plea bargain - in exchange for a lighter sentence. Nevertheless, for a variety of reasons, the Supreme Court has achieved a position of real power, and I gather from Justice Barak's book, and from people I've talked to, that the Israeli Supreme Court - correcting for differences between the two societies - is even more aggressive. Are you aware of the controversies surrounding the appointment of Daniel Friedmann as justice minister? Did you know that when Friedmann was appointed in February, retired Supreme Court justice Mishael Cheshin wrote him a letter warning not to curtail the power of judges? He even said: "I will defend the Supreme Court with all my might... This is my home, and whoever raises his hand against my home, I will cut off that hand." [He laughs and shakes his head.] An American judge would never say such a thing. And I was only made aware of the Friedmann controversy a few days ago. Often parties "approach the bench," as though it were King Solomon's court, to have a judge decide who's right. Why shouldn't an issue such as the security fence or proportionality of force during a military operation be determined by the judiciary? Again, that's something that every country decides for itself, but in the American context, the Constitution says that the president is commander-in-chief of the armed forces, and that Congress can make rules for the regulation of the military. But there's nothing in Article III of the Constitution - the judiciary article - that says anything about judges having any role in military affairs. The attitude of the judiciary has been that military decisions, including the decision to go to war, are the prerogative of the executive and congressional branches. The judiciary has no standing, even when incidents such as the conviction of American soldiers for torturing Iraqi prisoners of war arise? Most American laws do not apply extraterritorially. This is complicated by the fact that the United States is signatory to various international treaties - the Geneva Convention, for example - which impose obligations on the US toward foreigners abroad and prisoners of war. So, to the extent that there are judicially enforceable rights, the courts may find themselves in military matters. But the general attitude has been that this is an area where courts are not comfortable; they don't know a lot about it; and they stay away from it. In fact, the courts created a doctrine according to which a soldier who is injured through the negligence of his superior officers does not have the right to sue. An ordinary civilian injured through government negligence, on the other hand, does. There's also a very practical concern that military operations require secrecy and swift decisions, and that judges determining their legality is an impediment. One of Justice Barak's claims is that it is dangerous to suspend civil liberties and human rights during wartime, because reinstating them afterward is not a given - as though it's a slippery slope. You argue that rights can be restored with no problem. Why? Of course, Israel is a different country, but the experience of the US and others is that rights wax and wane according to the environment. So, when there's a real crisis, rights shrink, and when it passes they expand. The British, for example, have a very long history of dealing with terrorism, going back to at least the 16th century, when Catholic fanatics, with foreign state support, infiltrated Elizabethan England, and wanted to assassinate Queen Elizabeth. They've also had almost a century of dealing with Irish terrorism, against which they have used very rough tactics. And the current [radical Islamist] terrorist threat in England is very severe. Indeed, the British are quick to curtail civil liberties. But no one would say that Britain is not a democratic country, or that its democratic freedoms have shrunk to dangerously small levels. And you know, during World War II, the Americans and the Japanese treated each other with extreme savagery. But that didn't somehow spill over into Americans starting to mistreat Americans. No? What about the containment camps for Japanese Americans? But that was during the war. Afterward, it didn't have an effect. And the French committed extensive torture in Algeria, but they don't torture their own people. So, you can have this kind of compartmentalized brutality. But getting back to Barak's position: Judges are influenced by their personal histories and experiences. As a Holocaust survivor, Barak is very conscious of the history of Germany, which was a kind of slippery slope. The Weimar Republic started off with a democratic constitution, and more or less a democratic culture, in 1919. It was downhill from there. So people for whom that's a personal experience - not just something they've read about - worry that something like that could happen to Israel. Americans don't think that way, because there's never been anything like that in the United States. But one's being a Holocaust survivor could have the opposite effect - accepting the need for harsh measures, such as torture, against Nazis, or in the Israeli context, Palestinian terrorists. Absolutely. In fact, a striking example of this is Robert Jackson, a great American Supreme Court justice who took a leave of absence to serve as chief prosecutor at Nuremberg. He returned with a much more conservative view of freedom of speech, because he thought that the Weimar Republic had been too liberal in permitting the growth of extremist parties. So, yes, it could be played either way. The Weimar Republic was too strong, in the sense that its constitution allowed the president to suspend civil liberties in times of emergency - a kind of model that Hitler could follow - and too weak in the sense that it shouldn't have allowed such parties to rise. Still, personally, I would say this has nothing to do with the institutional structure of the Weimar Republic. There was going to be a Hitler anyway, and if it wasn't Hitler, it would be some other fascist, because the situation had been created in Germany as a result of its defeat in World War I, and there was going to be some horrible consequence or other. Do judges in democracies, like politicians, swing to the Left when they take office? That has been asserted, but I think it's confused with something else. Since Ronald Reagan's election in 1980, and as a delayed reaction to the [radicalism of the] 1960s, the United States has become a good deal more conservative. Judges tend to be old, so when Justice John Paul Stevens - in an interview in The New York Times a few weeks ago - described himself as a conservative [he laughs], while he's the most liberal member of the Supreme Court, I don't think he was kidding. It's just that he's 87, and the country has become much more conservative than it was in his formative adult years. He hasn't changed much - maybe he hasn't changed at all - but the mainstream has moved. So he used to be in the middle and now he's off on the Left. Nor do I think my own views have changed much over the years. When I was appointed in 1981, I was very conservative. But now I'm in the middle of my court. But that's because there have been more conservative appointments. So, for example, in the late 1970s and early '80s, the big issues that divided liberals and conservatives had to do with things like national defense and economic freedom. But abortion? I'd never been interested one way or another in abortion. Homosexual marriage? I didn't care one way or the other whether homosexuals got married. Those weren't issues. But when they emerged, people would say that I was pretty liberal, because I'm not opposed to abortion. In other words, it's the environment that changes, not so much the judges. What may be true is that part of what judges do to make themselves seem important [he laughs] is to place great emphasis on individual rights. The tendency then is to depreciate interests, which are not formulated as rights. Take the issue of physical security, for instance. You don't have a right to sue the government to hire more policemen because you don't feel safe. On the other hand, the interest in physical security is just as important as the personal rights that are legally protected. So, if you become a judge, naturally you're interested in the rights that are legally protected, and they tend to loom larger than the interests, which have to be balanced against those rights. But this is not a Left-Right divide, because one of the ways it can express itself is in a fanatical devotion to property rights. A good example would be the Second Amendment - the right to bear arms. An ordinary person considers guns to be very dangerous, particularly in America, which has a high rate of violent crime. Such a person might not want to interpret the Second Amendment literally, and would support gun control. But you're going to have some judges whose devotion to rights is so strong that when they see the Second Amendment creating the right to bear arms, whether or not it endangers people if enforced literally, they're not going to offset it by interests in physical security that are not legally protected. The right to bear arms was born of something, however. Yes, and it was very specific. The American Constitution emerged from a revolutionary situation in which the colonists were opposed by the British army. The notion of a right to bear arms was connected with militias - with having citizens armed, so they could oppose tyrannical forces and standing armies. That's a very historically specific concern. I mean, today it would be preposterous for anyone to imagine that owning a gun would enable him to oppose the US army. But not so preposterous to imagine that owning a gun would enable him to defend his home and family against intruders. Sure, but that would ordinarily be regarded as a judgment call by the experts. And there have been studies which suggest that the United States has fewer "hot" burglaries - the term for those carried out in homes that are occupied at the time - than Britain, because the burglars are afraid that a homeowner might be armed. So, that would be an example of how the right to bear arms can protect people. But the other part is concern of use of guns in suicides or mistakes, such as shooting a person you think is an intruder and he turns out to be your son. And, of course, the fact that the more ownership of guns there is, the more access criminals and lunatics have to them. Are you saying it is not true that where gun control is imposed, criminals can get hold of illegal arms anyway, while law-abiding citizens are prevented from defending themselves? You'll have some of that. And you can argue for or against gun control on various pragmatic grounds. This is now an issue in the Supreme Court, and I don't know what it will or should decide. It involves specific issues having to do with what kind of gun control should be permitted in the District of Columbia. My only point was that rights fetishism is not exclusive to the Left. Some seriously conservative people accuse modern courts of refusing to enforce the Constitution according to its original meaning, and claim that if they did enforce it according to its original meaning, they would greatly compress the scope of federal power. That would be an example of a right-wing project that would greatly increase judicial power. In other words, either side of the political spectrum can use the issue of rights to increase judicial power. What is the most outrageous ruling on an issue you didn't think should be determined by the courts at all? [He laughs heartily.] Well, in the 1970s, the Supreme Court decided that when a public employee - a teacher, police officer, what have you - has an employment contract, it is like property within the meaning of the Constitution. This means that you cannot fire anyone without due process of law - that every dismissal of a public employee is a potential constitutional case. That seems ridiculous. Why should a public employee have more rights than a private one? Most private employees are content not to have an employment contract, which means they can be fired at will, and that works fine. Of course, if they want, they can negotiate for a contract. Now, tenure for teachers is very common, which is fine. But there's no reason why a tenure contract should permit a teacher to go to federal court to contest a discharge on the ground that it is a constitutional infringement. That, to me, is a major expansion of judicial authority, based on a very arbitrary interpretation of the Constitution. And the tendency of the Supreme Court is to lay down rather inflexible rules in the name of the Constitution. Today, there seems to be a huge increase in sexual harassment cases, both in the US and in Israel. Isn't sexual harassment an example of something not clearly defined that is left to the discretion of judges? The sexual harassment area hasn't been much of a problem. In fact, it is remarkable how few sexual harassment cases are brought relative to the number of overall employment disputes. There are several thousand sexual harassment cases every year, but there are millions of disputes, firings, refusal to hire and others. If there are relatively so few sexual harassment cases, why has the issue taken over the workplace - with rules and regulations in every office - and employers being afraid of lawsuits? I don't think the fear is mainly because of potential litigation. It's more political in nature. Women are an enormously strong factor both in the workplace and in politics. They are also customers. And companies do not want women complaining. They don't want adverse publicity. Now, there will be particular incidents of a supervisor's harassing a woman, and they don't want the legal troubles. But mainly what they're concerned about is the fact that it's in their interest to encourage female employment. They depend on women. You can't run a company without women. And you don't want to get a reputation for being a place in which a woman doesn't want to work. Speaking of this kind of interest, one of your philosophies is the role economics plays in the law. You make cost-benefit analyses on situations many people wouldn't think of in those terms. Adapting this to Israel, how could one discuss Supreme Court rulings on the security fence in terms of cost vs benefit? If you're a security person, you'll design or create the fence without any particular concern for how you're interfering with the commerce of the people on either side of it, for example. This is imposing a cost. But, see, the way it's usually dealt with [in the US] is that if the government wants to take your property for a public use, it doesn't have to justify doing so. All it has to do is pay you the market value of the land taken. Of course, you can go to court and argue that you've been underpaid. But, what you cannot do is go to court and say that you don't want the market value of your property, preferring instead to stay put. Nor can you argue that the government shouldn't have built this security fence or that airport or whatever - leading to a dispute over national security that the courts decide on. That just doesn't come up in the United States. Israel has yet to forge an actual constitution. What advice would you give to its authors, when it is written? And what can be done to minimize the amount and level of interpretation left to the courts? Well, my useless advice [he laughs] would be that you should have written your constitution in 1948, because it's when a country is being created that there's fluidity. That's when people get together and say, "You know, we really need this constitution, and we'll make compromises." That's how the US Constitution was formed. By the time you're 60 years on, you realize that you can actually have a country without a constitution - it may not work well, but you have it - so the necessity is not seen as acutely as at the founding of a country. Furthermore, all sorts of interest groups have crystallized, and the process of compromise is much more difficult. But to be much more constructive: You would have to make a basic decision about whether you want a presidential separation-of-powers constitution, like that of the US, or something more like the British have. The British have no written constitution, but they have a very well-defined parliamentary system of government which involves centralization that you don't have in Israel. It's basically a two-party system, which simplifies life enormously. And it's a powerful government. It doesn't have the weakness that the Israeli government has. Also, you want to have an independent judiciary. The notion of judges influencing the appointment of other judges [as in Israel] - well, that was a big surprise to me. I never knew there was any system like that. That clearly is inconsistent with the separation of powers, because the fact that judges are appointed by non-judges is a very important limitation on judicial authority. To answer your second question: The basic function of a constitution is to create a government structure. The Bill of Rights is an add-on to the constitution, creating certain, very highly protected rights. That's actually less important. The founders of the Constitution didn't think there was any need for a bill of rights, because they were creating a competitive system, and they figured that the judiciary, legislature and presidency each would have enough power to prevent the others from doing something really outrageous. But if you want to have a bill of rights, you probably want to have a limited set of basic rights and leave them vague enough so that you're not putting them in straitjackets. So, for example, a stupid mistake of constitutional design: the Seventh Amendment says that you have the right to a civil jury trial whenever the amount in controversy is more than $20. In 1787, $20 was a lot of money. Today, it's nothing. So that's an example of inappropriate concreteness. Finally, Israel's judiciary lives alongside a religious court system. Is this consistent with liberal democracy, which, in the US, involves a separation of church and state? Yes. In the 18th century, though Britain was not a democracy, it was moving in that direction - the American constitutional system is very closely modeled on that British government - and they had the same set-up as Israel. They had ecclesiastical courts for each different religion, and you'd have to marry, divorce and deal with inheritance through them. I don't think it's incompatible with democracy. My objection, certainly in the US, is that I think we have too much religion, religiosity and religious controversy; too much worrying about the religions of the candidates and all that. If we had religious courts, it would only aggravate the problem. There was more acute awareness in the 18th century - way before 9/11 - that religious controversies are poison. And so there are very significant decisions in the Constitution. One is that God is not mentioned. Another forbids taking a religious oath for office. Another says that you may not limit officeholders by religion, as was the case in England, where only Anglicans could run for Parliament. Another is the ban in the Bill of Rights on state-supported religion and the upholding of freedom of religious exercise. All these things helped to limit the influence of religion in politics. Of course, it can't be eliminated, because people's personal values and political choices can be shaped by religion. But there's an attempt to keep it out. What's interesting is that until very recently religion really played a small role in American politics. So, for example, there was a lot of discrimination against Catholics and Jews. But that wasn't really about religion. That was about people who had different habits - like a class thing. People don't like different people. The concern with John F. Kennedy's candidacy wasn't so much over his being a Catholic - over whether he was taking communion and all that stuff. They were worried that the pope would tell the president what to do. Having a foreign power telling a president what to do is a legitimate concern, after all. But, when Kennedy made it clear that he would not allow officials or theology to influence his decision-making, voters said, "Fine." Nor would the election of a Jewish president be unthinkable, as long as he said he wouldn't impose kashrut on anybody or make men wear yarmulkes. They'd say, "Fine, you can have your strange beliefs." But now religion has crept into our public life. The funniest thing I heard about [Mormon Republican presidential candidate Mitt] Romney was from a person who said the problem with him is that it's very important for the president of the United States to have the support of God, and God will not listen to the prayers of a Mormon. [He laughs.] In 1960, no one would have said that God won't listen to the prayers of a Catholic. Somehow, until around 2000, we kept this sectarian disputation out of politics. What's interesting is when Romney's father, George, tried to become presidential candidate in the '60s, I don't recall any concern about his being a Mormon. He did himself in by saying that he had supported the Vietnam War because he had been brainwashed. That one slip killed his candidacy. I mean, a president who can be brainwashed? So that was that. But not the Mormon stuff. Is this rise in religiosity some kind of response to the spread of radical Islam? No, I think it has to do with abortion and the rise of homosexual rights, both of which deeply offend people. And religious groups now tend to define themselves in terms of their attitude toward sex and reproduction. Not on their attitude toward immigration? Oh yeah, immigration, that's a strange, sudden twist. So, what you're saying is that the very principles on which the US was based - church-state separation and immigration - are those which are now dividing the country? Yes, in fact, it's odd.