To the Editor:

For some reason, Judge Richard A. Posner saw fit to compose an article (not a book review) devoted exclusively to an attack on my essay, “Government by Lawyers & Judges,” published in the June 1987 issue of COMMENTARY. For some reason, the New Republic saw fit to publish Judge Posner’s article in its issue of September 28, 1987. For some reason, and probably the same reason, the editors of that journal refused to publish the following response, which I sent to them immediately:

September 14, 1987

The New Republic
1220 19th Street, N.W.
Washington, D.C. 20036

To the Editor:

With respect to Richard A. Posner’s article in your issue of September 28:

I don’t think Judge Posner was being fair when he ridiculed my distinction between questions involving the rights of individuals and questions “in their nature political”; as he must have known, I was quoting Chief Justice John Marshall.

I don’t think he was being fair when he attributed to me the absurd idea that the “domain” of rights is “fixed.”

I don’t think he was being fair—in fact, I think it was insulting—when he implied that I needed instruction in the business of common law judges.

I don’t think he was being fair when he said that my view was that “the Supreme Court should not have invalidated racial segregation in publice schools,” when what I wrote in the article under review was that “one of the privileges of national citizenship is to attend a nonsegregated public school.”

I don’t think it is fair to say that a legislature that enacts a law “that did not have [his] consent” is, by virtue of that fact, a legislature that acts without the consent of the governed.

And I do think, by way of concluding, that any litigant who wants to be fairly judged should do whatever is necessary to avoid being judged by Judge Richard A. Posner.

Walter Berns
Georgetown University
Washington, D.C.

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