My good buddy Mike is the Tim Russert of Article III.
A few highlights from his interview with Judge Posner and Mike Sacks.
- Posner calls originalism “not law, but being a historian.”
- Gun policy is an issue of “lethality of modern weapons” and “the sociology or urban and rural areas” and whether it is “feasible to have a national rule on gun ownership.” Difficult questions of law cannot be reduced to “semantic questions.”
- Mike Sacks asks about Moore v. Madigan, which extended 2nd Amendment beyond the home. “Well, lower court judges like me are obligated to follow Supreme Court decisions. Not just the narrowest rulings of the Court, but it’s logic and implications. We thought that the Heller opinion and McDonald Opinion, that logic couldn’t be confined to the home. That’s an arguable position.”
- Posner “didn’t like the Citizens United case. Political contributions ought to be tightly regulated. This is one of those issues to which the Constitution doesn’t speak…What does ‘freedom of the speech’ mean?”
- Rick Hasen quotes Posner as saying he admits he was wrong in Crawford Voter ID case. “Yes. Absolutely. And the problem is that there hadn’t been that much activity with voter identification. And … maybe we should have been more imaginative… we…. weren’t really given strong indications that requiring additional voter identification would actually disfranchise people entitled to vote. There was a dissenting judge, Judge Evans, since deceased, and I think he is right. But at the time I thought what we were doing was right. It is interesting that the majority opinion was written by Justice Stevens, who is very liberal, more liberal than I was or am…. But I think we did not have enough information. And of course it illustrates the basic problem that I emphasize in book. We judges and lawyers, we don’t know enough about the subject matters that we regulate, right? And that if the lawyers had provided us with a lot of information about the abuse of voter identification laws, this case would have been decided differently.”
- Mike asked if Posner had been more of a reliable conservative, would he be on the Supreme Court Today. Posner replied, “No. The factors that go into an appointment are very complicated. They are not limited to ideological dispositions. It has to do with who the person knows…” Mike interrupts and says Posner, along with Bork and Scalia were legal rock stars in the 1970s. I would’ve imagined you would be a delectable choice to put on the bench. Posner replied, “If you are the President. Your position with regard to any point is going to be influenced by a lot of factors beyond who is the best person for a job. You ask yourself, what does that do for me and my chances at reelection. Am I going to appoint a controversial person, will he be made a fool of, and how does that reflect on me.”
Then Mike goes to Jennifer Senior, who interviewed Justice Scalia.
- Once Scalia mentioned the devil, “We reached escape velocity.”
Posner said he is “really looking forward to hear what Scalia thinks about the devil.”
Then, they move onto Scalia’s repudiation of originalism.
Posner admits that he has moved to the left over time. “The financial crash of 2008 revealed a lot about American business that is unsavory and brought to light weaknesses in economics profession. I do consider myself less conservative than I use to.” Of Course, “Posner does not share widespread concerns with surveillance by National Security Agency. If they want to read my emails, they’re welcome.”
Scalia said at the end told Senior, “you have been an unexpectedly pleasant interview.”
Watch it all here: