The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Judge Richard Posner surprised the legal world with his unexpected retirement from the bench. Subsequent media reports indicate that disputes with his colleagues on the U.S. Court of Appeals for the 7th Circuit helped spur his decision. Most notably, Judge Posner was particularly concerned with the treatment of pro se appellants by the court.
Within weeks of his retirement, Judge Posner released a new, self-published book: "Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments." If you think that's an unusual title, wait until you see what's inside.
Judge Posner has never been one to worry too much about traditional constraints on judicial behavior. Freed of the federal judicial ethics requirements, he lets loose. In the course of chronicling his disputes with other judges about how to deal with pro se appellants, and providing extensive background information on how pro se litigants are treated by various federal appellate courts, Posner also dishes extensively, but sometimes the only target he hits is himself.
Over at CA3 blog, Matthew Stiegler is unsparing in his critique of the book. In a summary and review, he writes that "Posner has made a terrible mistake in publishing this book. It is bats— crazy." As Stiegler notes, Posner not only recounts his disputes with his former benchmates in excruciating detail, but he also has chosen to publish all manner of material, including memos written by staff attorneys and email correspondence among the judges.
At its heart, this book is a baffling, disjointed blow-by-blow of Posner's many recent battles with Seventh Circuit Chief Judge Diane Wood, the quite-unintentional hero of the tale.
The primary battle arose from Posner's demand that he be allowed to re-write all his circuit's staff attorneys' memos and draft opinions before they went to his fellow judges. This is a ludicrous idea. Posner thought it "uncontroversial" and he was "surprised" when it was met with first silence, then uniform rejection. When Wood told him so, Posner "angrily" threatened to reveal staff counsel work product he deemed not good enough. When he was told that doing so would violate the judicial code of conduct, he resigned, and now he has self-published everything—memos and drafts by staff counsel peppered with his acid edits, emails between the judges, the whole trainwreck.
And why did Posner anoint himself as filter between the staff attorneys and his colleagues? Largely, he says, because "uniquely among this court's judges, [he had] a deeply felt commitment to the welfare of the pro se litigants." But, by his own account, he only "became interested in the staff attorney program in the late winter/early spring of this year (2017)." And in his preceding three and a half decades on the court, "I'm pretty sure I'd never even discussed it with another judge." Deeply? Uniquely?
It gets worse. Posner chooses to reveal the initial panel vote in a still-not-yet-decided appeal that he identifies by name. The other two panel members plan to affirm, he tells us. (Posner disagrees, so we get two paragraphs summarizing and quoting from the dissent he would have filed.) What compelling reason led him to include this stunning disclosure in a book ostensibly about pro se's and televising arguments, when this case has nothing to do with either? Because "I've decided to note two recent clashes with colleagues." This is not Posner-being-Posner, this is madness.
It's almost as if Posner decided he should go out of his way to confirm his critics' harshest assessments of his character and fitness for the bench. Insofar as the book is emblematic of how Judge Posner began to see his job, it provides ample evidence that his retirement came none too soon.
Richard Posner will go down in history as one of the most prolific and influential legal thinkers of his generation, the contents of this latest book notwithstanding. Nonetheless, I cannot see how publishing this volume will help his reputation as a judge.