The Volokh Conspiracy
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Whelan v. Posner
The ever-prolific Judge Richard A. Posner of the U.S. Court of Appeals for the 7th Circuit has a new book out: "The Federal Judiciary: Strengths and Weaknesses." As an often insightful scholar and analyst, Posner would be expected to offer thoughtful commentary on the judicial branch. That's not what at least one critic found, however.
Over at Bench Memos, Ed Whelan has a series of posts excerpting and criticizing portions of the book—and let's just say Whelan's not much of a fan—not of Posner nor of this book.
From the first post:
You sure shouldn't judge a book by its cover. Seventh Circuit judge Richard A. Posner has just published another book-or, perhaps more accurately, another pretense of a book, with a grand title, stylish cover, and the imprimatur of Harvard University Press. But when you open it up, things quickly turn bad. Indeed, The Federal Judiciary: Strengths and Weaknesses may well be the worst-edited book that I have ever tried to wade through. . . .
Posner gives a warning of sorts, as he states in his preface that the book "is more a macédoine than a treatise" and "contains a good deal of quoted material." Macédoine, it turns out, is a fancy word for a confused mixture, a hodgepodge, a jumble, though I'm guessing that Posner intended a more favorable meaning (a mix of fruits or vegetables).
From the second:
"The dominant theme" of Richard Posner's new book, he tells us, is "standpattism-more precisely, the stubborn refusal of the judiciary to adapt to modernity" (p. 376). But "the stubborn refusal of the judiciary to adapt to modernity" turns out to be a vapid umbrella label for just not embracing Posner's positions. . . .
Posner complains that traditional modes of judicial decisionmaking are "excessively backward-looking" (p. x) because they focus heavily on legal text and precedent. Instead, judges should simply decide what policy is best and work to find a path to get there:
My approach in judging a case is therefore not to worry initially about doctrine, precedent, and the other conventional materials of legal analysis, but instead to try to figure out the sensible solution to the problem or problems presented by the case. Once having found what I think is the sensible solution I ask whether it's blocked by an authoritative precedent of the Supreme Court or by some other ukase that judges must obey. If it's not blocked (usually it's not-usually it can be got around by hook or by crook), I say fine-let's go with the commonsense solution.
Further: "The time to look up precedents, statutory text, legislative history, and the other conventional materials of judicial decision making is after one has a sense of what the best decision should be for today's society" (p. 82 (emphasis in original)).
Or, as Posner put it recently, most legal "technicalities are antiquated crap." Far better for judges to indulge "common sense" than to have a decision "supported by 'reason,' whatever that means exactly."
So, in Posner's view, laws are obstacles for the pragmatist judge to work his way "around by hook or by crook." . . .
From the third:
In his preface, Richard Posner says that his new book "is a big book, though not huge-not in a class with Moby Dick." True enough. But, like Moby Dick, Posner's book provides, if unintentionally, an intriguing account of one man's obsession. Perhaps it should have been titled Mopey Dick.
One of the most striking features of Richard Posner's new book is his incessant carping about praise for Justice Scalia. It's really something to behold. Posner begins his very long chapter on the Supreme Court by complaining for some five pages (pp. 65-70) about praise that Justice Elena Kagan and others offered for Scalia, both before and after his death. He tries to couch his complaints as an observation on "the absence of realism, or … the absence of a culture of frank discourse, that characterizes public discussion of the American legal system," but it would sure seem that something else is driving him to make these comments . . .
Posner says that he "was stunned to read" Cass Sunstein's praise for Scalia as "one of the greatest justices in the Court's history, and among its three best writers." He finds it "difficult to believe" the first half, and he says that nine justices he names "and many others" "outclassed" Scalia as a writer. As for Sunstein's "To know him was to love him": "I knew him too, I liked him well enough, but love him? Ridiculous!"
One page later, Posner complains about praise that Kagan offered for Scalia ("one of the most important" justices) before his death. "Colorful, outspoken, disruptive, yes," says Posner, but "unlikely" to be recognized as one of the most important justices. Even in saying that Scalia "deserves credit" for discrediting legislative history, Posner contends that Scalia "was pushing against an open door." Posner then turns to petty quibbling over praise for Scalia, including by Kagan, at the renaming of the George Mason law school after him.
After a respite (perhaps the bile ducts needed time to refill), Posner then spends four pages (pp. 95-98) complaining about praise for Scalia by members of the Harvard law faculty. The "liberals" "fairly tripped over themselves in lauding a deceased ultraconservative Justice of whom they had doubtless strongly disapproved." One professor who was a former clerk "gave no examples" in stating that Scalia followed his principles. Another says that Scalia "changed our framework," but Posner says he doesn't understand what that means. The observation by yet another that Scalia was a "superb" justice leads Posner to allege various weaknesses of Scalia's (for example, "his aggressive religiosity") that "placed him well below the most illustrious of his predecessors." On yet another professor's statement that "I stand sometimes almost in awe" of Scalia, Posner replies: "It never occurred to me to 'stand sometimes almost in awe' of him." Posner then complains that the "ultraliberal Martha Minow … raved about Scalia." (His emphasis.) And, in contesting her praise, he claims that Scalia had "rages" that were "legendary" (not something I ever heard of) and even baselessly insinuates that Scalia might not actually have co-authored ("whether nominally or not I don't know") the treatise with Bryan Garner that was the target of Posner's woefully incompetent attack five years ago.
Believe it or not, this is just a sampling of Posner's comments on Scalia that Whelan chronicles. Whelan, it should be noted, clerked for Scalia and is the co-editor of a forthcoming volume of Scalia's writings. Still, these excerpts may speak for themselves.
As those who regularly read Bench Memos know, Whelan is not one of Posner's bigger fans. These are not his first posts criticizing the judge. Given Posner's prolific writings, I doubt it will be the last.