"[Bashman] 5. You have for many years described your judicial philosophy as one of "judicial pragmatism." For those readers of this interview who have not previously encountered your description of what that means, would you please explain the term and how your approach to judging works in practice.See Posner's Law, Pragmatism, and Democracy at Google Books.
[Posner] ... The essence of judicial pragmatism, or at least my version of it, is recognition that difficult cases--and they are legion in our system--cannot be resolved at the appellate level by a distinctive process of reasoning called "legal reasoning," emphasizing careful parsing of text and scrupulous adherence to precedent and an analytical method that resembles deductive logic. Those methods do not resolve difficult legal cases, but merely conceal the true springs of decision in such a case, which involve a careful examination of the practical consequences of a decision for or against the appellant. The pragmatist emphasizes the continuity of facts and law, and the importance of common sense, experience, values, and yes, ideology in resolving cases when the conventional materials of judicial decision making--authoritative texts, precedent, deduction, and so forth--run out, as they so frequently do. This is not to deny the virtues, which are thoroughly pragmatic, of logic, fidelity to text, and adherence to precedent, techniques that can resolve most cases--only not the most challenging ones. The pretense that they can is particularly threadbare in the Supreme Court, which decides a very high percentage of cases that are in fact indeterminate from the standpoint of orthodox legal analytics. In any split decision by the Supreme Court, to say that one side is "right" and the other "wrong" is usually a naïve reaction."
For the other 19 questions, see How Appealing.