Richard Posner, a judge for the U.S. Court of Appeals for the 7th Circuit, an appellate judge, presides over trials as a trial judge.
Because he wants to, because he thinks that presiding over trials (something he did not do before being appointed to the federal bench) enhances his experience and makes him a better appellate judge.
There is a question though as to legality of assignments of Posner as a federal appellate judge to district cases, the conflicts of interest it creates for Posner's work as an appellate judge - and that is especially so that
- trial experience is not a requirement for an appellate judge (obviously so, since Posner was confirmed to his position as an appellate judge without such experience), and
- for an appellate judge to seek trial experience is weird - because an appellate judge must be content in restricting himself to the record on appeal and the issues it raises - and the record alone.
Judge Richard Posner was appointed by the U.S. President and confirmed by the U.S. Senate to be an appellate judge, and he draws a salary of an appellate judge - which is higher than the salary of a district court (trial judge).
Judge Posner is one of 12 judges in a very busy federal appellate court:
Federal appellate judges complain of crushing caseloads - in fact, so crushing that they decide 85% of cases and (according to my personal research, probably, 100% of civil rights cases), through "summary orders" instead of full-swing opinions. In other words, the majority of federal appeals and an overwhelming majority of civil rights cases are decided in a negligent manner, because supposedly judges are too busy to decide "worthier" cases.
Of course, the law of equal protection requires that for the same fee litigants get the same review and the same quality of review - and federal appellate court do not have DISCRETION to give less time to some cases over others.
Yet, that's what they do.
Any additional activities of appellate judges further cut into time they already claim they do not have to provide full opinions for all appellate cases that come in front of them.
Thus, Judge Posner's trial judge activity is hurting appellate litigants, and appellate litigants whose cases are decided by Judge Posner's summary order may have questions whether Judge Posner and his panel decided to rule on a case through a summary order and not a full opinion because Judge Posner found it more entertaining for himself to play at the role of a trial judge in a high-publicity district court case.
He "volunteers for trials" - like he did
- in 2007, and
- in 2012 for an Apple v Motorola trial where he "experimented" with court-appointed experts to explain unclear scientific terms to jurors - placing the court as an expert witness in front of the jury and thus destroying the court's neutrality and argued for stipulation to "blue-ribbon juries", cancelled the trial, and gave interviews as to his own decisions, expressing his "expert" opinions on intellectual property and declaring his own policies.
Yet, such "volunteering" is not supported by any law.
The assigned district judge must remain on the case from start to finish unless he disqualifies himself.
It is extremely rare - if at all happens - that the entire U.S. District Court would disqualify itself, so that a judge from another court would be invited.
Moreover, if a judge from another court is to be invited, a judge from the court of the same level - a district court judge - will be invited from that other court.
I found no announcements that the entire district courts recused so that Posner could be assigned, so assignment of Posner to trials was a FAVOR of the district court to Posner - a favor which was illegal
- not only because Posner had no right to preside over trials, not only because
- such presiding took him away from doing his job as an appellate judge, not only because
- such assignments created a HUGE conflict of interest when his decision would go to his own court for an appeal, but also because
- such assignments, catering to the whims of an appellate judge, tainted ALL decisions in ALL appellate cases coming in front of Posner from that court - creating appearances of trading favors.
My opinion is - NO and NO.
First, an appellate judge has a jurisdictional restriction - the Record on Appeal. That's it. That's all that the appellate judge is allowed to see and consider, and an appellate judge is allowed to consider ONLY issues "preserved for review".
Whether the appellate judge does or does not have trial experience, whether he is aware of possible trial dynamics - is irrelevant for appellate review. It reviews only the issues of law and whether the trial court and trial attorneys followed the rules, or whether the trial court "abused its discretion".
When an appellate judge wants to fit the shoes of a trial judge in order to "better" decide appellate cases, that smacks of bias - because if the appellate judge learns about "trial dynamics", he would want to inject his own experience into his decision-making, taking him outside of the record on appeal, and Judge Posner is already known for doing his own investigations outside of the record on appeal, something that even a trial judge is not allowed to do.
In other words, when an appellate judge seeks to also gain trial experience after being appointed as an appellate judge, that indicates not only that the judge is not happy within his boundaries as an appellate judge - and thus is not a good appellate judge and should be removed from his position.
Posner also seems not to be sufficiently entertained as a federal appellate judge - even though, despite the supposedly "crushing" caseloads that cause the 7th Circuit, as all other federal court, to dump over 85% of federal cases and, likely, 100% of civil rights cases through sloppy 2-page "summary orders", Posner have found time to:
- author dozens of books - and started publishing when he became a judge, so he used his judicial position as a sales point;
- teach in law school , and
- "volunteer" at trials in high-publicity cases.
according to his official biography (including his career path) published on his page at the Chicago School of Law:
Judge Posner has not worked in his life for one second other than in taxpayer-backed jobs - and, while he engages in his lucrative hobbies instead of doing his job, and while his lifetime of financial well-being is derived from taxpayer-backed jobs that require an oath of loyalty to the U.S. Constitution, he has the audacity to claim that it is useless for a judge who is deciding cases regarding violations of the U.S. Constitution to study the U.S. Constitution (the Supreme Law of the Land, the law that Judge Posner has pledged to protect and uphold as a condition to have a law license and as a condition to get on that federal bench).
Two days ago, I posted about what a waste to taxpayers the U.S. Supreme Court is, pretending it does a job it physically cannot do with less than 12 minutes per certiorari petition for review and judges pursuing their hobbies and paid trips by litigants while law clerks are slaving as judges.
Today, I am posting about yet another waste of our money - paying lower-level federal judges who do anything but their jobs, at our expense, in order to entertain themselves, enhance the value of their side commercial projects like book-publishing and teaching, and while mocking the very oath that they took to get their public employment jobs and to sucker us for our hard-earned money.
They have no right to remain on our payroll.