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Review of Richard Posner’s “The Federal Judiciary”

In Arts & Letters, Book Reviews, Books, Jurisprudence, Law, Writing on December 27, 2017 at 6:45 am

This review originally appeared here in the Los Angeles Review of Books.

“I’m not a typical federal judge,” Richard Posner says in his new book The Federal Judiciary, which seems designed to affirm that claim.

Released in August, this tome shouldn’t be confused with his self-published Reforming the Federal Judiciary, released in September. The latter has generated controversy because it includes documents internal to the Seventh Circuit Court of Appeals, including personal emails from Chief Judge Diane Wood and confidential bench memoranda. The former, the subject of this review, is no less blunt, though one suspects the editors at Harvard University Press ensured that it excluded improper content.

Publication of both books coincides with the sudden announcement of Posner’s retirement. This quirky and opinionated jurist is going out with a bang, not a whimper, after serving nearly 36 years on the bench. He could have taken senior status; instead he’s withdrawing completely, citing his court’s handling of pro se appellants as the prime reason.

The Federal Judiciary presents “an unvarnished inside look” at the federal court system, which, Posner insists, “is laboring under a number of handicaps,” “habituated to formality, resistant to change, backward-looking, even stodgy.”

Posner is a self-styled pragmatist who champions resolving cases practically and efficiently through common-sense empiricism without resorting to abstractions or canons of construction. He adores Justice Oliver Wendell Holmes Jr., whose jurisprudence resembled the pragmatism of C. S. Peirce, William James, and John Dewey. His methodology relies on analyzing the facts and legal issues in a case, and then predicting the reasonable outcome in light of experience and the probable consequences of his decision. Accordingly, he follows his instincts unless some statute or constitutional provision stands in the way. Most of the time, the operative rules remain malleable enough to bend toward his purposes.

This fluid approach to judging stands in contradistinction to that of Justice Antonin Scalia, for whom Posner has little affection. In fact, Posner establishes himself as Scalia’s opposite. Where Scalia was formalistic and traditional, Posner is flexible and innovative. Where Scalia was doctrinaire, Posner is pragmatic. Where Scalia was orthodox, Posner boasts, “I am willing to go […] deep into the realm of unorthodoxy.”

Posner’s criticisms of Scalia can seem irresponsibly personal, involving not only Scalia’s originalism and textualism (legitimate objects of concern) but also his religious views on Creationism (about which, Posner declares, Scalia was “wrong as usual”). He calls Scalia’s belief in the devil “[c]hildish nonsense” and denounces Scalia’s unhealthy lifestyle. In a low moment, he calls Scalia “careless” for dying next to a sleep apnea machine the ailing justice wasn’t using. This rebuke is irreverent, but is it constructive or extraneous? Does it advance Posner’s judicial methods while weakening the case for Scalia’s?

Aspiring to be “relentlessly critical and overflowing with suggestions for reform,” Posner attacks the “traditional legal culture” that, he says, “has to a significant degree outlived its usefulness.” Cataloging the targets of his iconoclastic ire would be exhausting. He jumps from subject to subject, castigating “judicial pretense” and treating with equal fervor such weighty topics as statutory interpretation and such trivial matters as the denotation of “chambers” versus “office.” He confers delightfully disrespectful labels (“slowpokes,” “curmudgeons”) on his colleagues but can also seem petty (complaints about food in the US Supreme Court cafeteria come to mind).

Most of his critiques have merit. His persistent assault on the sanctimony and pomposity of federal judicial culture is acutely entertaining, signaling to some of his more arrogant colleagues that they’re not as important or intelligent as they might think.

Posner likes to shock. What other judge would assert that the Constitution is “obsolete” or ask when we’ll “stop fussing over an eighteenth-century document” that institutes the basic framework of governance for the country? A bedrock principle underlying the separation-of-powers doctrine holds that the judicial branch interprets law while the legislative branch makes it. Posner, however, announces that federal judges legislate even though they’re unelected. Conservative commentators would offer this fact as condemnation, but Posner extols it as an indispensable prerogative.

Although he alleges that judges are political actors, he’s impatient with politicians. He ranks as the top weakness of the federal judiciary the fact that politicians nominate and confirm federal judges and justices. (The president nominates and the Senate confirms.) The basis of this objection is that politicians are mostly unqualified to evaluate legal résumés and experience.

A refrain Posner employs to advance his argument — “Moving on” — might serve as his motto for judges, who, in his mind, must break free from undue restraints of the past. “The eighteenth-century United States, the nineteenth-century United States, much of the twentieth-century United States,” he submits, “might as well be foreign countries so far as providing concrete guidance (as distinct from inspiration) to solving today’s legal problems is concerned.” This isn’t meant to be hyperbole.

His citations to Wikipedia and tweets — yes, tweets — enact the forward-looking attitude he celebrates: he’s not afraid of new media or of pushing boundaries. Consider the time he asked his law clerks to doff and don certain work clothing to test facts presented by litigants in a case before him.

His advice to colleagues on the bench: Let clerks refer to you by your first name; do away with bench memos and write your own opinions; stop breaking for three-month recesses; stagger hiring periods for law clerks; don’t employ career clerks; don’t procrastinate; don’t get bogged down in procedure at the expense of substance; be concise; read more imaginative literature; avoid Latinisms; abolish standards of review. If you’re an appellate judge, preside over district-court trials. And whatever you do, look to the foreseeable future, not backward, for direction.

Readers of his most recent book, Divergent Paths, will recognize in these admonitions Posner’s distinctive pet peeves. He believes that judges who don’t author their opinions are weak or unable to write well. If judges were required to write their opinions, he supposes, fewer unqualified lawyers would sit on the bench: inexpert writers, not wanting to expose their deficiencies, would not accept the nomination to be a federal judge.

Posner’s love of good writing is so pronounced that he praises Scalia, his chosen nemesis, for his “excellent writing style.” He sprinkles references to Dante, Tennyson, Keats, Fitzgerald, Nietzsche, T. S. Eliot, Orwell, and Edmund Wilson and supplies epigrams by Auden, Yeats, and Alexander Pope. Those who didn’t know it wouldn’t be surprised to learn that Posner majored in English at Yale.

Still one comes away with the impression that he has sacrificed precision for speed. He appears to have cobbled together several blog posts and other articles of only ephemeral significance to pad his polemic. He discusses judges’ “priors” on page 116 but doesn’t define that term (“a mixture of temperament, ideology, ambition, and experience”) until page 148. Liberal with block quotes, scattered in focus, he recycles by-now familiar arguments against Bluebook and legal jargon and other staples of the legal academy. Even those who agree with him on these points will balk at the redundancy.

The repetition isn’t only at the thematic level: it involves diction and syntax. He tells us on page 408, “Pope Pius XII made peace with evolution in 1950.” Then a page later, he states, “The Church had had a ‘problem’ with evolution until Pius XII had made his peace with it in 1950.” On page five, he writes, “almost all federal judicial opinions are drafted by law clerks […] in the first instance, and edited more or less heavily by the judge.” He then echoes himself on page 22: “[M]ost judges (and Justices) require their law clerks to write the initial draft opinion, which the judge then edits.” He describes this same process again on page 276. “I write my own opinions,” he declares only to repeat himself later: “I write and edit my own opinions.” These are mere samples of a striking trend in Posner’s book.

A former law professor, Posner concludes by assigning grades to the federal judiciary in eight categories: selection of judges (B), judicial independence (A-), rule of law (A), finality of judgments (B), court structure (B), management (C), understanding and training (C), and compensation (B+). Total? Around a B average. For all the fuss, that’s a decent score.

Posner’s characteristic arrogance is grandly exhibited. “I’m a pretty well-known judge,” he assures us. His preface includes a short bibliography for “readers interested in learning more about me.” He names “yours truly” (i.e., himself) in his list of notables in the field of law-and-economics, an indisputable detail that a more humble person would have omitted. Posner’s self-importance can be charming or off-putting, depending on your feelings toward him.

Yet he’s honest. And forthright. Not just the federal judiciary but the entire legal profession thrives off mendacity, which is not the same as a lie or embellishment. It’s a more extravagant, systemic mode of false narrative that lawyers and judges tell themselves about themselves to rationalize and enjoy what they do. Posner sees through this mendacity and derides it for what it is. His frank irritability is strangely charming, and charmingly strange. The federal judiciary has lost a maverick but gained a needed detractor.

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An Issue of Supreme Importance for 2016

In America, Conservatism, Judicial Activism, Judicial Restraint, Jurisprudence, Justice, Law, News and Current Events, Politics, The Supreme Court on April 22, 2015 at 8:45 am

Allen 2

This piece originally appeared here in The American Spectator.

The time has come for politicians to announce their candidacy for president. In the following weeks we can expect more names to be tossed into the hat of presidential hopefuls. Already Senator Ted Cruz and Senator Rand Paul have proclaimed their desire to lead our country. Hillary Clinton made her candidacy official Sunday, and Senator Marco Rubio announced on Monday night.

The 2016 election is shaping up to be the most pivotal in decades, including for reasons not everyone is talking about.

It’s true that Republicans will challenge Obama’s legacy and that everything from Obamacare to payday loans will receive renewed and energetic scrutiny on the campaign trail.

Yet these won’t be the most pressing domestic issues facing the next president. Even more important will be the president’s judicial philosophy. That’s because the probability is high that the nation’s next chief executive administration will nominate at least three candidates to the U.S. Supreme Court.

Although confidence in the Court is at an all-time low, voters do not seem particularly concerned about the Court’s future composition. Perhaps the typical voter does not understand the role the president plays in nominating justices. Perhaps the goings-on of the judicial branch seem distant and aloof and out of the purview of our everyday worries. Perhaps most people are too short-sighted to consider the long-term and far-reaching effects that a president can have on the legal system. Whatever the reason, voters should re-prioritize. Conservatives should move this issue to the forefront of the debates.

When the president is inaugurated in January 2017, Justice Ruth Bader Ginsburg, widely thought to be in poor health, will be two months shy of her 84th birthday; Justice Antonin Scalia and Justice Anthony Kennedy will be 80; and Justice Stephen Breyer will be 78. Is it reasonable to expect these justices to serve out four more years under another administration?

Justice Ginsburg and Justice Breyer are considered members of the left wing of the Court whereas Justice Scalia is considered to be on the right. Justice Kennedy is famously known as the Court’s “swing vote.”

If a Republican wins in 2016 election, he could replace two liberal members of the Court, leaving just two other remaining: Justice Sonia Sotomayor and Justice Elena Kagan. If Justice Kennedy were also to step down during the next administration, a Republican president could further expand the conservative wing of the Court to seven, making room for a vast majority in contentious cases. If the right wing of the Court enjoyed a 7-2 majority today, for instance, there would be less media speculation about how the Court would decide cases on same-sex marriage, religious freedom, immigration, or campaign finance.

The Senate Judiciary Committee, which conducts hearings on presidential nominees to the High Court, currently consists of 11 Republicans and 9 Democrats. Republicans hold a 54-member majority in the Senate, the governing body that confirms presidential nominees to the Court. If these numbers remain unchanged or only slightly changed under a Republican president, that president would have wide latitude to nominate candidates who have tested and principled commitments to conservatism.

Let’s say the presidential election favored a Democrat. A Democratic president could simply replace the departing Justice Ginsburg or Justice Breyer with a jurist in their mold, in effect filling a liberal seat with another liberal. If a Democratic president were up against a Republican Senate, however, his or her nominees would have to appear less liberal than Justice Ginsburg to ensure their confirmation.

Replacing Justice Scalia, arguably the most conservative justice on the Court, with a liberal would be transformative. Although depicted as an unpredictable moderate, Justice Kennedy was nominated by a Republican and more often than not votes with the right wing of the Court. Replacing him with a liberal justice would be a victory for the left. It is possible for the left wing of the Court to gain a 6-3 majority if a Democrat succeeds President Obama.

It’s not inconceivable that in the time he last left, President Obama could name at least one successor to the Court. Barring some unforeseen illness or act of God, however, that is unlikely to happen this late in his presidency. Justice Ginsburg insists on remaining on the Court, and Justice Breyer still has some healthy, productive years ahead of him.

Judges’ and justices’ judicial philosophies are not easily pressed into two sides—conservative or liberal, Republican or Democrat—because law itself usually is not reducible to raw politics or naked partisanship, and a judge’s job entails more than interpreting the language of legislative enactments. Law deals with the complex interactions of people and institutions under disputed circumstances that are portrayed and recounted from different perspectives; therefore, law rarely fits cleanly within simplistic political frameworks.

For this reason, among others, it can be difficult to predict how potential justices will rule from the bench if they are installed on the Court. Chief Justice Earl Warren ushered in the progressive “Warren Court Era” even though he had served as the Republican Governor of California and, in 1948, as the vice-presidential running mate of presidential candidate Thomas E. Dewey. More recently President George H.W. Bush nominated Justice David Souter to the Court. Justice Souter tended to vote consistently with the liberal members of the Court.

The Senate confirmation process has grown more contentious in recent years, and that has made it more difficult for another Souter to slip by the president. But it has also watered down our nominees, whose lack of a paper trail is considered a benefit rather than evidence of a lack of conviction or philosophical knowledge (lawyers are trained, not educated). It has come to a point where if you’re confirmable, you’re not reliable, and if you’re reliable, you’re not confirmable. Chief Justice John Roberts’ acrobatic attempt to uphold the individual mandate in Obamacare on the ground that it was a “tax” reveals just how squishy and unpredictable our justices have become.

There is, of course, the trouble with categorizing: What does it mean to be a “conservative” or a “liberal” judge or justice? Our presidential candidates may have different answers. In January Senator Paul declared himself a “judicial activist,” a label that is gaining favor among libertarians. He appears to have backed away from that position, recently bemoaning “out-of-control, unelected federal judges.” Activist judges, at any rate, can be on the right or the left.

Ted Cruz has not advertised his judicial philosophy yet, but by doing so he could set himself apart because of his vast legal experience, including his service as the Solicitor General of Texas. Two potential presidential nominees, Marco Rubio and Lindsey Graham, are also attorneys, but Rubio’s legal experience, or non-experience, is subject to question, and Graham has been out of the legal field for some time—although he serves on the Senate Judiciary Committee and has intimate knowledge of the Senate confirmation prospects for potential nominees.

It matters a great deal what our presidential candidates believe about the hermeneutics and jurisprudence embraced by potential Supreme Court justices. In the coming months voters will have the power to force candidates to address their judicial philosophy. The candidates must articulate clearly, thoroughly, and honestly what qualities they admire in judges because those qualities might just shape the nation’s political landscape for decades to come.

Conservatives have much to lose or gain this election in terms of the judiciary. Supreme Court nominations should be a top priority for Republicans when debate season arrives.
Read more at http://spectator.org/articles/62383/issue-supreme-importance-2016

The Law is Above the Lawyers

In Arts & Letters, Book Reviews, Conservatism, Humanities, Jurisprudence, Law, Legal Research & Writing, Literary Theory & Criticism, The Supreme Court, Writing on October 3, 2012 at 8:45 am

Allen Mendenhall

This review appeared here in The American Spectator.

Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (Thomson West, 2012)

Do not let its girth fool you: Reading Law by U.S. Supreme Court Justice Antonin Scalia and legal writing guru Bryan A. Garner is an accessible and straightforward clarification of originalism and textualism.* A guide for the perplexed and a manual of sorts for judges, this book presents 57 canons of construction. Each canon is formatted as a rule — e.g., “When the syntax involves something other than a parallel series of nouns or verbs, a prepositive or postpositive modifier normally applies only to the nearest reasonable referent” — followed by a short explanation of the rule.

Frank H. Easterbrook, who provided the foreword to the book, submits that originalism is not about determining legislative intent, but construing legislative enactment. In other words, originalists interpret as strictly as possible the words of the particular text and do not look to the earlier maze of political compromises, equivocations, and platitudes that brought about the text. Each legislator has unique intent; projecting one person’s intent onto the whole legislative body generates a fiction of vast proportion.

That the process of enacting a law is so rigorous and convoluted suggests the importance of adhering closely to the express language of the law; legislators, after all, have taken into account the views of their constituents and advisors and have struggled with other legislators to reach a settlement that will please enough people to obtain a majority. A judge should trust that painstaking process and not overturn or disregard it.

Originalism involves what Stanley Fish, the eminent Milton scholar and literary critic turned law professor, has called “interpretive communities.” That is the very term Easterbrook employs to describe how judges should account for cultural and communal conventions at the time a text is produced: “Words don’t have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text’s adoption understood those words.”

To be sure, the original meaning of a text — what reasonable people living at the time and place of its adoption ordinarily would have understood it to mean — is never fully accessible. The meanings of old laws are particularly elusive. When a judge can no longer identify the context of a law by referring to dictionaries or legal treatises available when it was promulgated, then he should defer to the legislature to make the law clearer.

Judges should not impose their interpretative guesses onto the law and, hence, onto the people; nor should judges make new law on the mere supposition, however reasonable, that a text means something that it might not have meant when it was written. “Meaning” is itself a slippery signifier, and it is in some measure the aim of this book to simplify what is meant by “meaning.”

The book is not all about grammar, syntax, and punctuation. It has philosophical and political urgency. The authors propose that the legal system is in decline because of its infidelity to textual precision and scrupulous hermeneutics. A general neglect for interpretive exactitude and consistency has “impaired the predictability of legal dispositions, has led to unequal treatment of similarly situated litigants, has weakened our democratic processes, and has distorted our system of governmental checks and balances.” All of this has undermined public faith in lawyers and judges.

Scalia and Garner, who recently teamed up to write Making Your Case: The Art of Persuading Judges (Thomson West, 2009), proclaim themselves “textualists,” because they “look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s anticipated consequences.” Most of us, they say, are textualists in the broadest sense; the purest textualists, however, are those who commit themselves to finding accurate meanings for words and phrases without regard for the practical results.

Consequences are the province of legislators. A judge ought to be a linguist and lexicographer rather than a legislator; he or she must be faithful to texts, not accountable to the people as are elected officials. (Leaving aside the issue of elected judges at the state level.) The authors seem to be suggesting that their approach needn’t be controversial. Originalism and textualism are simply names for meticulous interpretive schemes that could lead judges to decisions reflecting either conservative orliberal outcomes. One doesn’t need to be a fan of Scalia to appreciate the hermeneutics in this treatise.

Never have we seen a plainer, more complete expression of originalism or textualism. Reading Law could become a landmark of American jurisprudence, numbered among such tomes as James Kent’s Commentaries on American Law, Oliver Wendell Holmes Jr.’s The Common Law, H.L.A. Hart’s The Concept of Law, and Lon L. Fuller’s The Morality of Law. Although different from these works in important ways, Reading Law is equally ambitious and perhaps even more useful for the legal community, especially on account of its sizable glossary of terms, extensive table of cases, impressive bibliography, and thorough index.

Every judge should read this book; every lawyer who cares about law in the grand sense — who takes the time to consider the nature of law, its purpose and role as a social institution, and its historical development — should read this book as well. If Scalia and Garner are correct that the general public no longer respects the institutions of law, then this book is valuable not only for revealing the root causes, but also for recommending realistic and systematic solutions.


* Originalism and textualism are not the same thing; this review treats them as interchangeable only because Judge Easterbrook’s forward uses the term “originalism” whereas Scalia and Garner use the term “textualism,” but each author appears to refer to the same interpretive approach.

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