Seventh Circuit Judge Richard Posner is triggering a minor dust up over comments made at a bookstore appearance highlighting a new Posner biography written by William Domnarski. Posner blasted the current members of the Court as unqualified and the Court itself as “awful” in terms of the low quality of its work.
Last week, I spoke to the Federal Bar Association in Chicago about the Supreme Court, including critical remarks on how justices are selected and confirmed. Most justices over the history of the Court have been largely mediocre while others have been disasters. Circuit Judge Richard Posner was speaking after me and was in the audience but did not make any comments. It turns out that he had a lot to say on the subject.
Posner said that he is writing a new book entitled Strengths and Weaknesses of the Legal System, which he describes as having about 10 pages on the strengths and about 320 pages on the weaknesses. I’m very critical. I don’t think the judges are very good. I think the Supreme Court is awful. I think it’s reached a real nadir.”
Posner says that justices are selected for characteristics that have no bearing on their ability or intellect:
“politicians figure . . . ‘well, we’re appointing this person because he or she is of a particular race, or comes from a special part of the country, or this or that, or is liberal or is conservative. And this person is not particularly bright and doesn’t have much experience—never been in a trial courtroom, for example—but, there are all these brilliant law clerks working, so their opinions will be all right, because the law clerks will write them’ . . . That’s a very serious deficiency in our system, and there are zillions more.”
Posner is quoted as saying that “probably only a couple of the justices.” Specifically, those two passable members are Ruth Bader Ginsburg and Stephen G. Breyer. They “are qualified. They’re OK, they’re not great.” As to “there others”? Posner reportedly said “I wouldn’t waste my time reading their opinions.”
Posner is certainly correct that most nominees are not selected on the basis for being intellectual leaders. Indeed, Posner himself (as well as others like Judge Guido Calabresi) are examples of brilliant legal minds who were never nominated despite having transformative impacts on the law. Posner is without question one of the most influential living legal figures. His work on economics and law proved transformative for the field. His books in various fields are considered classics. While briefly considered during the Reagan Administration, he was considered too provocative and difficult to be a nominee. Instead, presidents prefer reliable ideological allies for the Court — preferably with a safe and understated record to avoid confirmation attacks.
I would not call this Court “awful” or largely unqualified. However, Poser is doing the country and the Court itself a service in raising troubling history of the Court and the need for scrutiny of how we select nominees. One can respect the Court — as most of us do — but also recognize its flaws. Under our current approach, our ability to secure an Oliver Wendell Holmes or Louis Brandeis is at best accidental.
Of course, as a lower court judge, it would behoove Posner to overcome his view that it is a “waste my time reading their opinions.” Judge Posner may view the cases as pedantic but they are also precedent. Otherwise some of those “unqualified” “awful” folks might be tempted to send back a message of their own in the form of a reversal or two.