Wednesday, April 22, 2009

Judges as "workers"

Another insight from the introduction of Richard Posner's How Judges Think:

[J]udges are not moral or intellectual giants (alas), prophets, oracles, mouthpieces, or calculating machines. They are all-too-human workers, responding as other workers do to the conditions of the labor market in which they work. ...

Because behavior is motivated by desire, we must consider what judges want. I think they want the same basic goods that other people want, such as income, power, reputation, respect, self-respect, and leisure. ...

[L]egal uncertainty ... creates the open area in which the orthodox (the legalist) methods of analysis yield unsatisfactory and sometimes no conclusions, thereby allowing or even dictating that emotion, personality, policy intuitions, ideology, politics, background, and experience will determine a judge's decision.
It's ironic, then, that many conservatives will claim that conservatism is based on an understanding that human beings are imperfect, and human nature can't be changed. These same conservatives will find it outrageous that judges' decision are influenced by factors outside the narrowest definition of "the law."

Speaking of judges' fallibility, Posner makes a blatant factual error on pg. 22:
Presidents differ in their ideological intensity, and taking account of that difference can improve the accuracy of the attitudinal model. Seven of the nine current Supreme Court Justices were appointed by Republican Presidents, but it is more illuminating to note that four conservative Justices were appointed by conservative Republicans (Scalia and Kennedy by Reagan, and Roberts and Alito by the second Bush), two liberal Justices by a Democratic President (Ginsburg and Breyer, appointed by Clinton), and one liberal and two conservative Justices appointed by moderate Republicans (Stevens by Ford, Souter and Thomas by the first Bush).
Did you find it?

I count two liberals and one conservative appointed by Ford and Bush Sr.