Has Richard Posner committed an impeachable offence?


Writing over at Slate (h/t Joel Pollak), Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit states that he no longer desires the application of the United States Constitution within the American legal system:

And on another note about academia and practical law, I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries – well, just a little more than two centuries, and of course less for many of the amendments). Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century. Which means that the original Constitution, the Bill of Rights, and the post – Civil War amendments (including the 14th), do not speak to today. David Strauss is right: The Supreme Court treats the Constitution like it is authorizing the court to create a common law of constitutional law, based on current concerns, not what those 18th-century guys were worrying about.

In short, let's not let the dead bury the living.

This isn't the first time Posner has embarrassed the judiciary, but it is certainly his most irresponsible public statement.  It also proves, since he was appointed by former president Ronald Reagan, that conservatives have a terrible track record – perhaps worse than liberals – when it comes to the quality of their judicial choices.

How Posner has escaped impeachment this long remains a mystery, since his ongoing commentaries while remaining on the bench are a textbook example of bringing the administration of justice into disrepute.

In 2012, he said he has "become less conservative since the Republican Party started becoming goofy."  This, of course, openly mixes partisan politics with the judiciary, which is a very immature move.  Furthermore, it should cause individuals who are known members of the GOP to feel that Posner will be biased against them if he is to preside over their case.  For a sitting judge to declare a mainstream political party as "goofy" is truly reprehensible.

His pro-authoritarian police state views on the power of the government to intrude into all aspects of private life is frightening:

I think privacy is actually overvalued[.] ... Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct. Privacy is mainly about trying to improve your social and business opportunities by concealing the sorts of bad activities that would cause other people not to want to deal with you. ...

Congress should limit the NSA's use of the data it collects – for example, not giving information about minor crimes to law enforcement agencies – but it shouldn't limit what information the NSA sweeps up and searches. If the NSA wants to vacuum all the trillions of bits of information that are crawling through the electronic worldwide networks, I think that's fine. ...

I'm shocked at the thought that a company would be permitted to manufacture an electronic product that the government would not be able to search.

His admiration of a police state absent any serious counterbalance from the public became even more clear when he uttered the following: "I'm always suspicious when the civil liberties people start telling the police how to do their business."

Posner has also argued for a ban on hyperlinks or the paraphrasing of copyrighted material, thereby taking a position against free speech and the ability of the public to have reasoned discourse on important issues:

Expanding copyright law to bar online access to copyrighted materials without the copyright holder's consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder's consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations.

On their own, each of these prior statements should have brought Posner's position on the bench into question, but in now claiming that judges should not spend even a few seconds "studying the Constitution, the history of its enactment, its amendments, and its implementation," the judge has crossed a line.

It is the Constitution that sets the framework for the rule of law, and under 28 U.S. Code §453, one presumes – as Pollak noted at Breitbart – that Posner had to take the following oath, whose application continues without diminishment in any form while he sits on the Court of Appeals:

Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: "I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God."

Despite significant contributions to the academic study of law over the decades that are widely respected across the West, Posner's statements at Slate – especially when coupled with his previous stated views on free speech, privacy, and police powers – would suggest that he has formally abandoned, or seeks to abandon, the rule of law and other afforded protections under the U.S. Constitution.

Litigants appearing before him would have reasonable grounds to believe that his courtroom is a Constitution-free zone, and that is clearly unacceptable . In fact, it is illegal.  It is time for Posner to step down, or for efforts to be undertaken in order to effect his removal.