By Brad Friedman on 10/29/2013, 6:05am PT  

[This article now cross-published by The Progressive...]

Okay. Now this is beginning to get completely absurd.

In an article at New Republic headlined "I Did Not 'Recant' on Voter ID Laws'," published Monday, 7th Circuit Appellate Court Judge Richard Posner now claims he hasn't actually disavowed his landmark majority opinion in Crawford v. Marion County Election Board after all!

The record will show, however, the Reagan-appointed judge may have a bit of a faulty --- or, at least, selective --- memory.

The Crawford case is the now-infamous 2007 challenge to Indiana's then new polling place Photo ID restriction law which Posner voted to uphold in a 2 to 1 decision. The law was subsequently upheld by the U.S. Supreme Court in 2008. It is the only high-profile case to uphold such laws as Constitutional, even though Justice John Paul Stevens, who wrote the controlling opinion at SCOTUS, now believes dissenting Justice David Souter "got the thing correct."

Despite recent comments by Posner, in both his new book and at HuffPo Live, appearing fairly clearly to suggest he now believes he was wrong about his original decision in the case (which is often incorrectly cited by Republican supporters of such disenfranchising laws); and his expressed belief that the 7th Circuit Court of Appeals dissenter Judge Terrence Evans "was right"; and his assertion that such laws are "now widely regarded as a means of voter suppression rather than fraud prevention," Posner now appears to be wobbling back again in his latest response to his own controversy...

According to this week's Richard Posner...

I did not say that my decision, and the Supreme Court’s decision affirming it (written, be it noted, by the notably liberal Justice Stevens), were wrong, only that, in common with many other judges, I could not be confident that it was right, since I am one of the judges who doesn’t understand the electoral process sufficiently well to be able to gauge the consequences of decisions dealing with that process.

Read Posner's full essay for all of his latest nuance. And good luck with that. Better read it quick before it changes again!

His reverse reversal, such as it is, comes on the heels of smears from some on the right --- as we noted Monday both at The BRAD BLOG and at Salon --- in response his initial disavowal of his original opinion in the case. It is that original opinion, of course, that is, for now, the law of the land.

Jacob Gershman at Wall Street Journal's Law Blog observes, correctly, that this entire mess began in response to a line from Posner's new book which reads: "I plead guilty to having written the majority opinion (affirmed by the Supreme Court) upholding Indiana’s requirement that prospective voters prove their identity with a photo ID—a type of law now widely regarded as a means of voter suppression rather than of fraud prevention".

In turn, Gershman pulls then pulls the chair out from under the flip-flop-flippy jurist with his own words:

The line didn’t get much attention until HuffPost Live’s Mike Sacks asked Judge Posner about it in an interview that aired Oct. 11 (fast-forward to the 8:40 mark). The reporter read the passage to the judge and asked him if he and the court had gotten the case wrong. "Yes, absolutely," Judge Posner replied. Judge Posner doesn’t mention the interview in his New Republic piece.

So, judge for yourself. UC Irvine law professor Rick Hasen already has. He told WSJ's Law Blog, in response to Posner's newest position: "I do not believe it is credible given his Huffington Post comments".

Writing at his own Election Law Blog, Hasen tersely summed the issue by writing that Posner "was wrong the first time, right the second time, and wrong the third time."

For our part, our continuing coverage of the Richard Posner Roller Coaster Ride can be followed in these articles, to date:


Judge Posner Surprised Disavowal of His Own Photo ID Ruling Caused Stir; Tells NYTimes He Wasn't 'Alert' to Election 'Trickery' Previously (10/16/2013)

Right Smears, Others Say 'Told Ya So': Fallout from Posner's 'Stunning' Photo ID Case Admission (10/28/2013)

...You may wanna bring some Dramamine along for the read.

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