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.
Posner’s definition of “qualified judges”: If Posner agrees with the decisions of another judge, that judge is “qualified.” If Posner disagrees with the decisions of another judge, that judge is “unqualified.”
As a public service, I thought I’d encapsulate Posner’s “reasoning” on what “qualified” means.
In point of fact, MOST judges are unqualified to hold the position of judge because they regularly render opinions on matters outside the scope of law. For example, judges regularly render opinions on matters pertaining to such other disciplines as science, medicine, finance, accounting, and the arts, yet they have essentially ZERO knowledge of those subjects. Thus a judge may opine on whether or not a patent has been infringed even though they know next to nothing about the underlying science and technology of the particular subject patent.
The solution to the REAL “qualification” problem of judges, i.e., rendering decisions on matters they know next to nothing about, is that a judge must pass independently conducted examinations in the subject areas in which they render decisions. These examinations should be at least as rigorous as the bar examination. And if they have to go back to school to acquire the necessary knowledge and skills for the matters in which they render opinions on, so be it.
Of course, lawyers themselves determine the standards for becoming a judge, so nothing will be done about the REAL problem regarding the “qualifications” of judges. Lawyers aren’t going to require themselves to go back to school and pass tests proving that they have sufficient knowledge and skills in the matters they are involved in. Most of them would FAIL such examinations, and those failures would put them out of work, as they are too lazy to do the required work to acquire competence. And, of course, they all fear being branded as incompetent, which would be the inevitable result of imposing actual standards that would need to meet to benefit the overall public.
Posner’s statements are absurd. All of the SCOTUS Justices were once elite law graduates just like their current clerks. Chief Justice Roberts, in particular, was himself a law clerk for Justice Rehnquist and was one of the most accomplished Appelate Court advocates (including the Supreme Court) in the country before joining the bench. Justices Kagan, Breyer, also clerked for the Supreme Court and Justices Alito and Sotomayor had extended tenures as highly regarded Circuit Court judges.
These comments reek of a crochety old man’s sour grapes.
Sorry I don’t agree; also, I ran for Congress as a Republican, not a leftoid.
Well, you’ve taken one gratuitous shot at Clarence Thomas and another shot at Antonin Scalia. (See Clayton Cramer on 19th century interpretations of the 2d amendment). There’s a big pink elephant in the middle of the room and you’re complaining about the cockroaches on the windowsill.
I see your campaign for Congress was in 1976. The Michigan Republican Party was shot through with temporizers at that time, among them Gov. Milliken (who is astonishingly still alive and has endorsed Clinton), Marvin Esch (Senate candidate, Congressional voting record a shade to the right of John Anderson’s), and the three other members of the congressional delegation occupying the ideological space between Gerald Ford and John Anderson. Life was so much better before the takeover by the vulgarians who actually believe in something other than splitting the difference.
I don’t think anyone will get nominated who puts the constitution first and their personal politics second.
I just have to say one thing about the Constitution first, as well as the heady support from some of Justice Scalia. I think he intentionally misread the 2nd Amendment in his Haller opinion . The thing that troubled me most about what he did was that he walked away from his decades of insisting on “original intent” and precise reading of the Constitution. He manifestly repudiated the significance of the preamble clause: “A well regulated militia being necessary to the security of a free state….” When this was drafted, the US had no standing army. (Sorry if this is slightly off-topic.)
That’s not the significance of that clause, but an indicator of the utility of the right recognized. The contrivance is reading the second clause as something other than a recognition of a personal right. By the way, the first clause makes clear the drafters were referring to a right to keep and bear military arms.
Yes, and which were blunderbusses, not assault weapons, and not 60 round clips.
Aye, and publishing was undertaken by craftsmen with hand-operated printing presses. And speeches were given without microphones.
Have you noticed that leftoids have three complaints about Supreme Court opinions: Bush v. Gore and Citizens’ United and DC v Heller? That’s it. One adjudicated a wretched situation made worse by the Florida Supreme Court and the other said corporations have certain privileges and immunities (something they would not deny were the corporation the New York Times Company). A generation ago, the public interest bar was given to histrionics when the justices made a decision which made work a tad more challenging for criminal defense attorneys or when they said you don’t have a constitutional right to a publicly funded abortion. The leftoid complaint about the appellate judges has long been that they didn’t get the maraschino cherry on top or that they did not (this time) persuade them to impose a policy outcome that progtrash wanted but that elected officials did not want. Only very recently (with the recognition of some personal right to own a gun) have democratically enacted preferences of leftoids been defeated in court rulings. From 1937 until 2008, they won every round and they still whined.
Groen
Posner is 77. It is obvious he is not looking for nomination to the Court. I am surprised that you would suggest this since you are one of the brighter persons on this board
Joe Andrews: 77 is old, and it would be the oldest nomination and the oldest in the modern era, but he’s not the first 70-year old to be nominated to the Court. And 77 today is much different than a 70-year old in the 18th and 19th centuries.
And he’s certainly got the ego to think he could do it. The static round mound of sound, Antonin Scalia, thought nothing wrong with a little Texas hunting with the boys when he took his last step.
You’re assuming he’s not suffering intellectual deterioration has he ages. Wouldn’t be so sure.
You’re right. I’m assuming he hasn’t suffered intellectual deterioration. OW Holmes, Jr., served on the Court until he was 90.
Perhaps Judge Posner is squeaking to get the grease? A nomination to the Court from either major party candidate?
While I respect him like I respected Justice Scalia, I have always been at odds (to put it nicely) with his endorsement of the concept of “efficient breach of contract.”
Very smart guy. Very good jurist, with Scalia-like, take-no-prisoners, written opinions, but he’s like grating fingernails on the blackboard.
If he views the Supreme Court as comprised by a majority of “unqualified” members, then I question his definition of “Qualified”. We need more of the Scalia “unqualifieds” then.
No doubt, Judge Posner has written some brilliant opinions, but so have most of the current members of the USSC. Clearly he’s exaggerated the failings of the Court, but he comes off as far more curmudgeonly than incisive. Now, if he were talking specifically about certain justices, those who, for example, have exposed their closed minds by (almost) never finding any questions to ask, then Posner has a real point.
I don’t see what the point is for this jab at Clarence Thomas. He does not find oral arguments informative and is not in the business sending coded messages to the other justices. (Or of just running his mouth a la Sotomayor).
Sour grapes, indeed. Posner, like many leftists, is a would-be tyrant who doesn’t like the protection of freedoms the Constitution was drafted to provide, and chafes at his impotence to remake the judiciary, the US government, and society in an image he approves of.
He isn’t a leftist. He’s an unsually obnoxious libertarian.
I was gonna say.
He isn’t leftist, he is unusually libertarian.
Libertarians are brilliant legal jurists, and unfortunately very rare.
Rightist statists will call him leftist. Leftist statists will call him rightist.
That is the bane that all libertarians will bear when people put special interests above unbiased law and justice.
Rubbish. Were he ‘unbiased’, he wouldn’t be offering his contempt from the bench at anyone defending common-and-garden matrimonial law.
Of course his comments are asinine, as is he. The problem the appellate judiciary has is a hopelessly inflated sense of its role in the political order, a misconception the legal academy and the elite bar share. We need conscientious appellate judges who test laws only sparingly and only with an eye to what is fairly discoverable in constitutional language. The courts are awful because they produce intellectual scandals like Roe v. Wade.
If we lived in a just world, Richard Posner would be arrested, stripped of his citizenship in a brief administrative hearing, put on a plane to Argentina, and told if he ever attempted to re-enter the United States he would be summarily shot on the tarmac. So would about 4 members of the current Supreme Court.
To back that up the Court does about a 100 a year. Appellate and Circuit about 3,000 civil cases alone in their 94 sub districts. Total case load annually I’ve read is near 30,000 but I didn’t verify that one.
On the one hand they know about 1/3 of one percent of their decisions will not be questioned. On the other hand what does it say about lower courts
https://www.bjs.gov/content/pub/ascii/cbjtsc05.txt points out civil claims alone run about 7.5 million most settled out of court Glance down that lilst of statitstics it’s very instructive and does not include criminal.
I can see why they with a 1/3 or so percent of their ruling unchallenged to the Supreme Court level they get that inflated sense of importance.
That does not count the courts that are completely outside the Judicial System run by the Fourth Branch operation.
It’s a wonder the country has time to breathe or sleep.
As I get older I have realized how important the SCOTUS is and at the same time have realized how badly they are failing us.
I disagree with Posner.
He says, “this person [SC judge] is not particularly bright.” …”but, there are all these brilliant law clerks working”. All of the judges on the Court are from either Harvard or Yale. One can argue that is of itself a problem but one cannot argue that these individuals are “not particularly bright”. The law clerks themselves are largely Ivy League. They are from the same stock of wood yet somehow the clerks are smarter?
This strikes me as sour grapes. He was not selected even though he is bright and harbors bitterness for it.
He mentions two justices, Ginsburg and Breyer as “qualified”. Interesting. They are perhaps closest to his own judicial philosophy especially Breyer.
The problems on the Court are not due to a lack of intelligence or ability.
He’s pissed off he didn’t get their job and considers himself superior. That he’s regarded by many as a hopelessly sloppy graphomaniac likely rankles as well. I’m wagering he says sweet things about Ginsburg and Breyer because they’ve never btich-slapped him in print and the others have voted to reverse his opinions and taken him apart.
When Scalia left it, it rose a little in credibility.
It rose only among the mentally disabled and among people whose conception of judicial review is ‘I get what I want”.
Stepon NAILED it!
It’s ironic you say that there are those on the Court getting what they want because Justice Scalia was pretty good at writing opinions which suited the end he wanted rather than following precedent or even his own prior opinions.
Here’s an example whereby he had the chance to overturn Wickard v. Filburn’s expansion of the Commerce Power, a 60-odd-year old case he had strongly criticized for decades as too far-fetched:
https://en.wikipedia.org/wiki/Gonzales_v._Raich
I assume that because the case was about deregulation of the devil weed and the fear of being seen without clothes, he chose to uphold Wickard v. Filburn, not directly but by engineering a novel manner of obtaining the same result through the Supremacy Clause.
Correction: Necessary and Proper Clause, not the Supremacy Clause.
Supremacy Clause meaning who has the last word in interpreting or changing the Constitution.
A. Executive
B. Judicial
C. Legislature
D. Other (De Jure)
E. Other (De Facto)
If you select D or E name the choice.
the last is supposed to be humor.
Scalia was a wizard as far as the structure and historicity of the law is concerned. He had a vast ability to pull together minute detail and precedent to fuel his right wing and narcissistic logic. The Supreme Court and America is better off without him. Perhaps, soon, corporations will not be awarded the same rights as individuals and America can navigate that long and arduous journey from oligarchy to democracy. Of course, the majority of Americans might just be mentally disabled and not appreciate the likes of Scalia and Trump. We’ll find out soon.
We were discussing (or was it criticizing?) Justice Thomas recently. However, his dissenting opinion in the Raich case was succinct and what I would have anticipated Scalia to join in. Credit where credit’s due. Apparently, Justice Thomas isn’t afraid of pot and what his congregation might think when he opines with clarity. It takes a clear eye.
That’s perhaps (read bottom paragraph before getting irate) a progressive viewpoint and progressives are 100% anti-constitution. Half the country would take the opposite view point and a great many cannot be called conservative which is a catch all meaningless phrase at best. At present the so called liberals are by proper dictionary definition the conservatives entrenched and defending their turn against change.l Liberal likewise is a stupid word to rely on.
The differences are progressive ‘socialist’ seculars versus constitutional republic supporters/
As for democratic it exists only at the very grass root stages where the direct vote exists. Even the secprogs do not want it any higher. Just enough to get rid of checks and balances and that was 103 years ago.
You will find many of us not use left wing PC style definitions and framings. LEFT is those who prefer government over citizens Center in a Constitutional Republic is The Constitution. Center for the leftists is somewhere between Max and Lenin with definitions by Carville and Yoda Lykoff. Right is the former true source of power the citizens. The Marxist version currently in vogue doesn’t even line up the different factions properly Communist and Nazis or International and National Socialism are the extremists of the left. In all a useless system whose definitions are meant to verbally enslave.
Put things in their proper order and Republicans become what they are at least the RINO portion the right wing OF the Left.
Think about it. does your PC system explain why RINOs always cave to their left wing masters except when they need to play act for a few weeks during election years?
Senseless.
In the end many of us should have but don’t a Constitutional Republic Party which welcomes representative Democracy as it’s firm base and with a restored checks and balances system – without an evil Fourth Branch of Government and a more evil 5th Estate. come to think of it the education system is properly placed in the 5th Estate with the rest of the propagandists for the most part.
On the other hand you may not be a progressive leftist but one who thinks there are no other definitions. Just a because a lie is told over and over does not make it the truth. Think about it. I should not autopilot conclude one is left or right but quite possibly one who has not learned to think or reason objectively and discover the nature of being enslaved by false definitions without realizing the trap they represent.
Use the definitions of the enemy one loses the battle and the war. One also gets a no choice rigged election as a by product.
Posner. Wasn’t he that reporter for Pravda when the CCCP fell that was quite popular with the ‘beeyooteefull people? Think about it. If nominated a Pravda Reporter can be legally nominated and confirmed. No law against it. Why always Ivy League. They wear the same tie and it’s neither red nor blue.
I agree Posner is not acting judicial in his comments. That said, when one speaks truth they SHOULD be given great latitude. I know many attorneys who work in the 7th Circuit. Their views on Posner run the gamut. I’ve never heard one question his intellect.
“And you shall know the truth and the truth shall make you free.” John 8:32
Nick, it crossed my mind that Prof. Turley’s criticism of Justice Ginsburg was quite a bit more harsh than his criticism of Judge Posner, who belittled rather learned and accomplished folks rather than an airhead with an inheritance and a penchant for trophy wives.
Just sayin’. 🙂
A family donating money to a university so that a son or daughter can get a diploma is not adequate proof of competence. We need some sort of democratically developed tests which must be passed, without cheating, before one can run for, or be appointed to, higher office.
The starting comment shows a distinct lack of knowledge of the Constitution. The requirements for becoming a Supreme Court Judge are a. nomination and b. confirmation. Thus ends the requirements and qualifications.
Go read it. One can be a 12 year old from Mars or a rock from the Gobi Desert. There ARE NO QUALIFICATIONS listed as to age, citizenship, sex, race, education or experience. To claim otherwise is ….to beg the questions – So? If you don’t like the stated system which has lasted without much comment and zero attempt to change for near 240 years in the first and oldest Constitution in history then what are you doing to make change? Why is change needed if any?
Personally I would bar as a litmus test anyone with a law degree from the post as I would bar anyone with with a law degree from membership as Delegates of the various States to the Federal Congress or the only two true federal level offices President and Vice-President.
But then I’m not a member of an Amendment Committee and one doesn’t exist. Neither does any effort to change the rules for SCOTUS.
If the complainer was willing to start such an Amendment it would lend a crumb of credence but in absence of that effort it’s a silly and meaningless comment with no merit.
Speak now or forever hold your piece. A “piece” is a reference to a handgun. I you do not speak up for your Second Amendment right to arm bears hen you are not an Originalist or a Reconstruction Era Originalist. The Framers of the 13th, 14th, and 15th Amendments which freed the slaves, made all citizens equal, and gave the freedmen voting rights, did not take away or narrow the right to arm bears. Or to bear arms. Posner is just speaking his mind. I wonder which “Court” or collection of Supreme Court Justices he likes the best. Would it be the Earl Warren Court or the rednecks who gave us Jim Crow support.
Those amendments didn’t “make” them equal, they were already equal. This was our founding father’s vision for the United States. The amendments were merely steps to close the gap from where we began and where we wanted to be as “a more perfect union”.
You need to sober up before you post again.
Wow a judge judging the merits of other judges.
Imagine that.
Maybe law is just too complicated.
Wonder who complicated it?
I long for the day when a meritocracy will be the mail goal of our society. I believe this man might be a bit over critical of the current justices, partisan politics should not be the test of the suitability for a candidate for the court.
There will hopefully come a time in the future where the duopoly will be subservient to the best course for our country. But I suspect as long as we have a situation where politics remains paramount, we can expect little change.
If you don’t want partisan politics entering into assessments, tell the appellate judiciary and the law professoriate to stay in their lane and quit with the pretense that public decisions in conflict with their personal preferences are ‘unconstitutional’.
What Robert Bork said is right. The culture of the elite bar is so ruined that judicial review cannot be reconciled with popular government.
I agree with Jefferson.
I also think that a great deal of damage has been done by neglect and ignorance of the 9th and 10th Amendments, particularly after the Civil War.
http://tenthamendmentcenter.com/2012/06/04/thomas-jefferson-on-judicial-tyranny/
The 9th Amendment is too obscurely written to be worth anything. So is the 8th Amendment.
What part of any powers not granted do NOT exist is so hard to understand? Only someone who did not believe in self government but government by an elitist ruling class would find it difficult to understand. The difficulty is in ‘obeying the law.’ The problem lies in oversight and checks and balances.
Who is there to control the controllers in a system, where lawyers and attorneys are regard as fit to oversee themselves? Same applies to Congress. Too damn many elitists and not enough ‘of the people.’
The most untrustworthy group in the country in order starts with politicians, then attorney’s, then educators, then news anchors, reporters and finally one climbs to the level of used car sales staff.
No group that provides it’s own oversight – as the fourth branch of government has proven – can be trusted especially those that cannot understand the language.
Those that violate basic laws are neither worthy of trust nor respect. The same group I notice as those who routinely violate their oath of office.
Who are they to pass judgment on anyone? Heal thyself and learn the language. 100 years of practical and moral failure is enough evidence of incapability and now you demonstrate a lack of literacy as well??
You’ve confused the 9th Amendment with the 10th Amendment.
What part of any powers not granted do NOT exist is so hard to understand? They understand they choose not to follow the law nor even attempt to change it – Ignorance is no excuse.
The most untrustworthy groups in the country in order starts with politicians, then attorney’s, then educators, then news anchors, reporters and finally one climbs to the level of used car sales staff..
Those that violate basic laws are neither worthy of trust nor respect. The same group I notice as those who routinely violate their oath of office.
With those lack of moral values and demonstrated illiteracy who are they to pass judgment on anyone?
I disagree. The 9th Amendment makes clear that the rights listed in the Bill of Rights are not exhaustive. It is the proper basis for every future SCOTUS finding fundamental rights that aren’t expressed outright in the Bill of Rights (or later Amendments).
I vote with Jefferson too. Since Marshall, the court has drifted to being political, especially this last century when FDR ‘packed the court’ and the Senate has approved Justices along political lines instead of ‘original intent’.
As to the country changing after the ‘Civil War’ (an oxymoron if there ever was), I agree with Ken Burns in his Civil War video, “before the war, ‘the’ and ‘united’ were in lower case letters (like the Declaration of Independence), but after the Civil War, they were in upper case letters.” Lincoln had a choice to defend the Constitution or the Union (not both), and in my opinion he picked the wrong one.