Private: Federal Appeals Court Judge Richard Posner Questions Inconsistent Application of ‘Originalism’

by Jeremy Leaming

Federal appeals court judge and University of Chicago law school professor Richard A. Posner in an interview with The New York Review of Books laments the nature of judicial hearings, especially those for Supreme Court selections, as being unhelpful, and questions Justice Antonin Scalia’s adherence to originalism, writes Christopher Shea for The Wall Street Journal.

The entire interview with Posner is behind a pay wall, but Shea writes that Posner discusses “what he sees as inconsistencies in Justice Antonin Scalia’s application of the ‘orginalist’ judicial philosophy…”

Shea adds that Posner (pictured) maintains that at times judges do create law because “constitutional text is sufficiently ambiguous.” He quotes Posner as saying:

At my confirmation hearing back in 1981, when confirmations were much less controversial (and of course court of appeals nominees don’t get the same scrutiny as Supreme Court justices, though they are getting much more than they did when I was confirmed), Strom Thurmond, the chairman of the Judiciary Committee, asked me, “Do you agree that judges should just apply the law; they shouldn’t make the law?” I said that was usually the case but some cases are indeterminate and to decide them the judge may have to create some law.

As noted here yesterday, earlier this week at the American Enterprise Institute, Scalia, as is his wont, chided judges who supposedly do not take the Constitution seriously (such judges are those who do not apply originalism in the manner Scalia asserts he does).

“If current social values are to be the yardstick for determining the Constitution’s meaning, then it would seem natural to entrust the task of constitutional interpretation, as in England, to the legislature, and to dispense with judicial review altogether,” Scalia said.

Constitutional Interpretation, Supreme Court