Judge Posner Can't Agree on What He Decided, or Said

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By Gabriella Khorasanee, JD on October 29, 2013 3:55 PM

We recently posted about Judge Posner's thoughts on the Crawford voter-id opinion he authored. Based on an excerpt from his book "Reflections on Judging," he seemed to hint that he didn't agree with the direction the case took -- the view that the "law [is] now widely regarded as a means of voter suppression rather than fraud prevention."

In a recent HuffPost Live interview, when Judge Posner was asked if he got Crawford wrong, he said:

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.

Perhaps Judge Posner was not prepared for the interview heard 'round the world, but he now appears to be tiptoeing back a bit. In a recent article he wrote for the New Republic, Judge Posner states that he did not recant on Voter ID laws.

Confused? So was The Wall Street Journal's Law Blog, who reached out to Judge Posner for comment and received this response from Judge Posner:

In context, with particular reference to what I said after "yes, absolutely," my point was that we judges in the Crawford case did not have sufficient information about the consequences of an Indiana-type photo ID voter qualification law to make a reliable decision regarding its constitutionality. Experience with the photo ID laws since Crawford (decided six years ago) suggests that Crawford may well have been wrong.

I think it possible too that I didn't hear the interviewer's question exactly; that what I heard was not "do you think you got it wrong" but "do you think you may have got it wrong." To that, "yes absolutely" would state my views exactly.

My little piece in the New Republic is the fullest and most accurate summary of my views on the matter.

As to what Judge Posner will think about this matter next week, your guess is as good as ours.

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