Dear Professor Dershowitz:Sadly, the clash in this particular Posner debate became less and less focused as the messages wore on.
A footnote citing an anonymous tipster or leakster is a parody of scholarship. [...] You traffic in rumor, innuendo, and reckless charges. [...] Earlier in our exchange you said that I "deliberately distorted the entire thrust" of your book and implied that as an appellate judge I "willfully distort the trial record and the case law." You have difficulty accepting that the people you disagree with might, just might, be acting benightedly but in good faith; that Justice Scalia might not have "consciously decided to be a hypocrite."
Law should be in the service of life. Where do you think law comes from if not from practical concerns with attaining such social goals as prosperity, security, freedom, and, in Bush v. Gore, an orderly presidential succession?
My experience has been that judges are more practical people than the readers of their opinions would suppose and that this is a good thing, one we shouldn't be ashamed of. (Slate, where the whole dialogue is now published)
Impressive legal realism here:
Every advocate knows that in arguing a position one tries to make it connect with something in the judge's life. Is it happenstance that the early cases on sex discrimination focused on discrimination against men, for example on laws setting a higher drinking age for young men than for young women? The women lawyers like Ruth Bader Ginsburg who pressed these cases wanted to present the issue of sex discrimination in a context that would trigger the empathetic reactions of male judges. For those who believe in expansive notions of equal protection, or who think Article II a valuable tool for heading off debilitating presidential election controversies, it was fortunate rather than otherwise that the case that raised these issues was named Bush v. Gore rather than Gore v. Bush; it meant that the issues arose in a form more likely to catch the sympathetic attention of conservative justices. Had the shoe been on the other foot, the liberal justices might well have been more sympathetic to the arguments for stopping the recount�especially after agreeing on Dec. 4 that the Florida court might have violated Article II.
The fact that extraneous factors may cause a judge to be more alert to a particular line of argument than he might otherwise be, that judges' decisions do not compose a harmonious whole, that judges like other people change their minds, that unconscious feelings influence judges, that the prospect of a national crisis that timely judicial intervention would avert does not leave judges wholly unmoved, that time pressures may prevent judges from articulating the grounds of their decisions with a cogency that will withstand unfriendly academic scrutiny, and that the course of a judge's decisions will not track perfectly the official pieties of the judicial office that he will utter from time to time�these are such pervasive features of the judicial process that to regard them as proof of corruption is to condemn the entire process. (same Slate)