A must read about Judge Posner

With a tip of the hat to the incredible resource that is Howard Bashman and How Appealing, you must read: “The Maverick — A Biographical Sketch of Judge Richard Posner: Part I.” authored by Ronald K.L. Collins at “Concurring Opinions.” It is a wonderfully written and insightful piece that contributes greatly to our understanding of Judge Posner.

The failure to put Posner on the Court is a modern-day tragedy of immense proportions. It is infuriating that no President–Republican or Democrat–had the guts to nominate Posner because they feared that he was just too damn smart and too damn candid and too damn unpredictable and too damn intellectually honest.

RGK

25 responses

  1. Best takeaway quote: “I was a little disappointed in the Supreme Court. I had a more elevated opinion of it as a law student than it merited.”

    More than anyone else, Posner persuaded me that we are not ruled by law but judicial fiat, and that most judges are inveterate sociopaths who will say or do just about anything to deceive the public into believing that their personal moral code comports with the law of the land. In his sage view, the kingdom of the law “has shrunk and greyed to the point where today it is largely limited to routine cases.” http://www.amazon.com/How-Judges-Think-Pims-Immigration/dp/product-description/0674048067 When I cite-check opinions, I often wonder whether a drunken monkey with a typewriter wrote the damn things. Unlike the Judge, I “surrendered” a long, long time ago, and the Circuits (and yes, even trial courts) are often worse than the Court.

    We have exemplars of mediocrity like Thomas and Sotomayor infesting the High Court because the major Parties have figured it out, and they would rather have an incompetent partisan on the Court than a skilled and independent jurist. To call their output “law” is to do violence to the term. We might as well just let random juries decide what the law is.

    As a practical matter, we do not have the “rights” guaranteed by our Constitution, but a tenancy-at-will in what can only be described as mere “liberties” (see Coke). Worse yet, we have no way of knowing what those “liberties” are — and no way to organize our affairs so that we can comply with “the law” — as “the law” is whatever our black-robed masters say it is on any given Tuesday.

    Whereas Thomas Paine proclaimed “that in America the law is king,” all we managed to do is (I won’t take credit for this line; I may have read it here) replace King George with King Judge. To praise the “too damn smart and too damn candid . . . and too damn intellectually honest” Judge Posner is to admit this state of affairs as fact.

    He is, as Kagan writes, a national treasure. It is a pity that more judges are not as candid or as intellectually honest. Including, I might add, a certain Oxford grad student named Elena Kagan, who ran in sheer terror from her own honest appraisal of the Supreme Court in her confirmation hearing.

  2. I’ve had several cases decided with Judge Posner on the Seventh Circuit panels, with decisions for and against me. I am less enthusiastic about Posner than Howard Bashman. There is no doubt that he is brilliant and that he writes extremely well. The problem is that he is not as smart as he thinks he is. In too many cases, including some of mine, he gets so carried away with his brilliant insights that he forgets his decision is supposed to be on the facts in the record before him. His statement of facts sometimes bares little resemblance to the record but is based on his internet research and what he supposes he knows or reads between the lines. I’m relieved that he never made it to the Supreme Court.

  3. Perfesser – You state: “[M]ost judges are inveterate sociopaths who will say or do just about anything to deceive the public into believing that their personal moral code comports with the law of the land.” Such an overly-broad indictment of judges simply rings hollow and affects your credibility as a commentator on the very fine jurist, Posner. Are you talking about the Supreme Court? The entire federal bench? Appellate judges only? Trial court judges? All the state court judges? WHO? You are entitled to your opinions and I know you are more intelligent than this simple trial lawyer, but I’ve been in the trenches with many fine judges and your hyperbolic comments rub me the wrong way. I’m tempted to talk about one-way tickets to somewhere that is “better”, but then I would just be accused for having a “love-it-or-leave” mentality. I trust you will give thanks on Thursday for your many blessings in this land of hanging courts and sociopathic judges. Apologies to Judge Kopf for my tiny tirade of today on his blog.

  4. John,

    Posner has a myriad of faults. He can be petty. He also has too little regard for the record, as you point out. I remain convinced, however, that he would have brought an intellectual rigor to the Court equal to or superior to that of Justice Scalia. The Court, and the rest of us, would benefit from a clash of those titans. All the best.

    RGK

  5. Counselor:

    I think that we can all agree that Posner is the smartest man in the room in almost any room he just happens to be in. And here is what he says (from his 2008 book, How Judges Think):

    There is “a pronounced political element in the decisions of American judges,” and the evidence of this is “overwhelming.” p. 369 “Appellate judges in our system can often conceal the role of personal preferences
    in their decisions by stating the facts selectively, so that the outcome seems to follow from them … inevitably, or by taking liberties with precedents.” Id. at 144. They “are constantly digging for quotations from and citations to previous cases to create a sense of inevitability about positions that they are in fact adopting on grounds other than deference to precedent,” a process he calls “fig-leafing.” Id. at 350.

    Posner asserts that judges are liars, “parrot[ing] an official line about the judicial process (how rule-bound it is) … though it does not describe their actual practice.” Id. at 2. Judges “are not moral or intellectual giants,” id. at 3, but often succumb to the temptation that power brings. You can take issue with what he says, but you can’t deny that he said it. Moreover, he is hardly alone in his assessment: I could cite a score of his colleagues in both federal and state appellate courts, saying essentially the same thing. For instance, Justice Eismann of Idaho recently wrote in dissent: “There is a saying that hard cases make bad law. That saying is incorrect. … It is the courts that make bad law in the process of deciding cases based solely upon whom they want to win or lose.

    http://www.idahostatesman.com/2014/02/16/3031974/idaho-supreme-court-justices-at.html

    Richard Posner is a walking, talking, and “damn smart” indictment of the American legal system. That is but a sample of his acerbic prose.

    What I am saying is the weight of the evidence supports his conclusion, both qualitatively and quantitatively. In the pedestrian civil and criminal matters that consume most of the typical judge’s docket, the law is so well-established that there isn’t a lot of room for free-lancing. But in the more ideologically-charged cases, judges often do exactly what Posner says they do. Even in this forum, Judge Gertner admitted that she was literally trained on how to “get rid of” pro se civil rights cases, and that involves institutional judicial dishonesty. This is why Judge Posner can credibly say that the kingdom of the law “has shrunk and greyed to the point where today it is largely limited to routine cases.” Id. at cover. If your practice involves mundane cases that the judge doesn’t personally care about, you won’t see it on a regular basis in your practice.

    Is the incomparable Judge Posner really that wrong, MOK?

    The only way to catch most factual misrepresentations is by reviewing the complaint or the briefs, which is often cumbersome. But how many times have you sat there, looking at a citation, and saying to yourself, “I know that case, and that’s not what it stands for”?

    Don’t shoot me. I’m only the messenger. A reply was in order, but I will say no more, as per the Judge’s instructions.

  6. Judge. There is a case to be made that a judge can be too smart, that was often the criticism of Lord Denning. I am not sure I believe it It usually takes me two years after a loss to convince myself the court read the brief and record though John Otto maybe more forgiving than I am. That Scalia is all that bright is largely a product of group think, a weakness to which lawyers and academics are very prone. As far as not being as smart as he thinks he is, Posner has that in common with most legal academic. I was exempt from that problem because of my humility of which I am very proud.

  7. Judge Kopf:

    We all seem to agree that SCOTUS is stocked with craven politicians, and that Judge Posner would be superior to any of them, with the possible exception of Scalia.

    You are in the best position of any of us to judge your colleagues on the merits. If you could pick nine active judges (including those on senior status) to sit on the Court, who would they be?

  8. Posner has actually reduced his desire to shock with the years, but his famous argument that with perfect capital markets and manumission slavery would not be so bad is a classic example, and his article on the Iowa spring gun case, though a masterpiece, is not exactly calculated to convince anyone not already convinced of the wisdom of utilitarianism.

  9. Curmudgeon,

    Interesting question. You flatter me.

    Just off the top of my head, I will give you eight in addition to Posner: (1) M. Margaret McKeown of the Ninth Circuit; (2) Alex Kozinski of the Ninth Circuit; (3) Bill Riley of the Eighth Circuit; (4) Mark Bennett, Northern District of Iowa; (5) Gerard E. Lynch of the Second Circuit; (6) John M. Rogers of the Sixth Circuit; (7) Janice Rogers Brown of the D.C. Circuit; and (8) Laurie Smith Camp, D. Neb.

    Some of these people I know and consider them my friends, but my personal relationships are not the reason that I added them to the list. Others I don’t know except in passing. I hope what you see in the foregoing list are intellectually rigorous thinkers, most with a good deal of common sense, and a very wide range of experiences. It is not an accident that I added two very experienced district judges.

    If I had to nominate a Chief Justice from the group, it would be M. Margaret McKeown, a person with absolutely fantastic interpersonal skills coupled with a deceptive, self-deprecating, uber brilliance. On top of that, she is one of the best legal writers in the judiciary.

    All the best.

    RGK

  10. I think I get the gist of your position. “If your practice involves mundane cases that the judge doesn’t personally care about, you won’t see it on a regular basis in your practice.” Yes, that is me, I am just a mundane counselor involved in the every day cases that concern the vast majority of our citizens, so that is all my opinion is worth. Have a great turkey day.

  11. Judge, Two former law profs, are you going soft? Sure Curmudgeon is pleased Georgetown gets CJ. With two NE Law grads why did you not loosen criteria and nominate Bo?

  12. MOK, Like you I did mundane cases and I also taught quotidian courses. We should rejoice in the chance to see big time law, even if only from the cheap seats.

  13. Judge Kopf:

    An interesting side question raised by some of the comments above: who are the best Article-III writers? There are some very solid candidates. In many regards, Judge Posner belongs high on the list. Care to offer your thoughts?

    David

  14. Apropos of a clash of intellectual titans*, SCOTUS, Justice Scalia, and great writing, anyone on here who hasn’t read Justice Kagan’s dissent last term in American Express v. Italian Colors Restaurant should do themselves the favor. It was, in my humble opinion, superlative.

    *I understand those who would say “titan” is premature as Justice Kagan has only been on the Court a few years. Budding titan?

  15. David, of the group I listed, M. Margaret McKeown is a fantastic writer. See here for a prior post about M3. By the way, M3 was the first female partner with the law firm of Perkins Coie in Seattle, Washington, and Washington, D.C., representing clients like Boeing, Nintendo and Citicorp during her time at the firm, from 1975 until 1998. Judge McKeown was elected to the American Law Institute in 1993 and was elected to the ALI Council in 2009. She serves as an Adviser on several ALI projects: the Restatement Fourth, Foreign Relations Law of the United States-Treaties; the Restatement Third, The U.S. Law of International Commercial Arbitration project; and the International Intellectual Property project. Her writing is particularly clear.

    All the best.

    RGK

  16. Ah yes, we are loyal members of the “peanut gallery”. Big time law, indeed! They can have it. I’ll stay with the common people. 🙂

  17. Great discussion in the comments on this one. Apart from the other virtues (and vices) folks have mentioned about Judge Posner, I’ll mention another virtue* I’ve noticed over the years. In decisions in one area of the law, he’ll frequently use analogies from other areas of the law. I especially like this because — and this is extremely important in our profession’s ever-increasing trend toward subject-matter specialization — it not only encourages lawyers to think more broadly about the legal issues they face, but it also discourages the development of tunnel-visioned doctrinal anomalies in certain areas that are prone to (over-)specialization. (My own area of IP springs to mind!)

    * Maybe this isn’t a separate virtue, but merely a result of the extraordinarily broad scope of Judge Posner’s intellect. Now that I think about it, it probably is.

  18. Gov’t IP Lawyer,

    Great point. Posner really does a wonderful job of giving us examples to illustrate his meaning. The clarity of his writing reflects both the clarity of his thinking and, I agree, his incredible breadth of knowledge more generally. Thanks for adding this important point.

    All the best.

    RGK

  19. RL,

    Judge Lynch, who I have only met once, has real world experience in his academic field, criminal law. He served as assistant U.S. attorney, Southern District of New York in 1980-83, prosecuting white-collar criminal cases and serving as chief appellate attorney. He returned to that office as chief of the criminal division in 1990-92.

    Judge Rogers, who I know personally, served many years with the Army while also teaching law. He speaks German and Mandarin and was twice a Fullbright Professor in China. His long service (28 years) with the Army gave him unique and practical experience in military matters. For example, his last posting was with Office of the Deputy Under Secretary of the Army for International Affairs (DUSA-IA-IPR), Pentagon, Washington.

    So, while two academics make the list, their legal experience has forced them to confront the real world. All the best.

    RGK

  20. I have entertained the following scenario on more than one occasion. Assume, for the moment, that one of the conservative-leaning Justices retires in the next three years or so, for whatever reason. Especially if the Senate remains in Republican control, it is singularly unlikely that a Democratic president could appoint someone to his or her ideological preference; whatever norms formerly controlled this process have long since gone out the window.

    In that case, I think that nominating Judge Posner would be a brilliant move. He is in the mold of a “classic” Supreme Court appointment, done without regard to his longevity on the bench. He has enemies and friends on both sides of the aisle. It is, in sum, quite difficult to make the case that he is intellectual unfit for service on the Supreme Court, or that he otherwise lacks the credentials for the position. And he would likely, this many years into a powerful judicial realignment, be at least palatable to members of the President’s party.

  21. Judge,
    Excluding the judges on the 8th Circuit who review your decisions, to the extent you can do Top 5 lists, who do you believe are the top 5 appellant judges currently on the bench. The top criteria would be writing and reasoning skills.

  22. I’ve thought about this post and the Court of Appeals is the perfect place for Judge Posner.

    While his strengths are legion and obvious, so are his weaknesses. John Otto stated it quite well — Judge Posner has little regard for the record. And his intellect has led him into some positively puzzling decisions (like his 1991 opinion that sheriff’s deputies did not violate the Fourth Amendment’s when they towed away a mobile home without a warrant).

    I want Judge Posner’s contributions to our legal firmament, but I don’t want them to be the final word on the matter. Given the considerable wheat and considerable chaff that he brings, an intermediate court is the right place for his talents.

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