Interviewer: How could Justice Thomas get confirmed after he said under oath that he had never discussed Roe v. Wade with anyone is his life?
Judge Posner: The problem is that if the nominee says, “I’d be lying to you if I said I didn’t have a preliminary judgment,” he is accusing his predecessors of having lied, right? It is very tricky. The problem is that we have a political system in which the definition of a gaffe is telling the truth.
That nice piece of contemporary Americana came from an NYRB interview with Judge Richard Posner, 7th Circuit US Court of Appeals. The interviewer was Eric J. Segall from the Georgia State University College of Law.
The whole interview is full of goodies. Posner ends with this:
If you compare today’s constitutional law with the Constitution of 1787 everything has changed, but it has taken 224 years, so the change has not been abrupt. The Senate started off with twenty-six members who were indirectly elected and were expected to be members of the political and social elite of the country. It was a genuine deliberative body. So you could say that the Supreme Court today is taking the place of what the framers expected the Senate to be.
Which leaves us in the situation of needing a real Supreme Court. A second Senate is definitely not what we need.
