November 30, 2016 (Fault Lines) — The Maine Coon is one of the largest domesticated breeds of cat. It has a distinctive physical appearance and rarified hunting skills. Such cats can weigh 17 pounds and from the tip of the tail measure 3.3 feet in length.
The human equivalent of such a creature is Judge Richard Posner, particularly when it comes to hunting skills. At least as of 2014, Judge Richard Posner unsurprisingly had such a cat.
Posner’s Pixie, a furry gray Maine Coon, as pictured in a post by Ronald K.L. Collins, The Man Behind the Robes — A Q&A with Richard Posner, Concurring Opinions (December 1, 2014). According to Posner, “She is beautiful and very intelligent, like her predecessors, but has the distinction of being the first actually to like me.”
I have just completed reading William Domnarski’s* Richard Posner, Oxford University Press (September 23, 2016). If you want to be a first rate lawyer (or judge) of any kind, and particularly if you want to be a first rate CDL, this is a book you must read—and slowly.
Really, you say, why should a CDL read about Posner?
You probably remember Booker, the Supreme Court’s decision blowing up the Sentencing Guidelines. It was Judge Posner who authored the Seventh Circuit opinion killing the Guidelines that became the basis for Booker. Over a dissent from Judge Easterbrook, Judge Posner made it clear that Blakely had to be followed to its logical extreme. District judges needed to know that was so and they needed to know it fast.
The opinion was released in typescript three days after oral argument and 16 days after Blakely was decided. United States v. Booker, 375 F. 3d 508 (7th Cir., July 9, 2004) (Posner: “As an original matter, then, we think that the guidelines, though only in cases such as the present one in which they limit defendants’ right to a jury and to the reasonable-doubt standard, and thus the right of defendant Booker to have a jury determine (using that standard) how much cocaine base he possessed and whether he obstructed justice, violate the Sixth Amendment as interpreted by Blakely. We cannot be certain of this. But we cannot avoid the duty to decide an issue squarely presented to us. If our decision is wrong, may the Supreme Court speedily reverse it.”)**
But the paragraph I just wrote is really a teaser. Hands down, Posner is the most important judicial writer and thinker of the modern age and that includes every member of the Supreme Court and such luminaries as Judge Easterbrook and Judge Henry Friendly.
Prove it, you say? Posner’s impact on the law can be measured empirically, and Domnarski is the first (or so I believe) to use an all-encompassing empirical measure to prove the point.
Westlaw assisted Domnarski. As the lawyer-reader knows, Westlaw produces headnotes which are in essence distilled points of law. Using those headnotes, a search was done to find that Posner used 9,573 distinct principles of law that translated into 24,574 headnotes in his opinions and those Posner principles have been cited 213,474 times. The next closest judge was Judge Easterbrook, he too of the 7th Circuit, with 6,182 distinct key number principles of law that have been cited 138,662 times.*** Judge Henry Friendly, who Posner regarded highly as did virtually everyone else, was even further behind with 4,151 distinct key numbers and 63,915 citations.
But I have still not made my real point. So here goes. While Domnarski’s book is a judicial biography, it is far more importantly an intellectual biography.**** And that is why you must read it.
It takes you through Posner’s early life, through his elite schooling, in and out of Justice Brennan’s chambers (an easy job, so suggests Posner), teaching, judging, law and economics, the law and literature movement, his dismay regarding the performance of district judges and lawyers, his bemused thoughts about the Supreme Court and Posner’s engagement with the world on such subjects as sex and terrorism, and an almost limitless number of other subjects.
The book shows with exquisite care befitting Judge Posner what true intellectual rigor requires. Just as Maine Coon cats are especially good hunters, Posner has consistently been a hunter for ideas, legal and otherwise. In Domnarski’s exegesis, we learn what it is to be the best hunter in the world.
Too much highfalutin talk, you say! OK, try this: read the book ‘cause it will make you less dumb.
Richard G. Kopf
Senior United States District Judge (Nebraska)
*I am a huge fan of Domnarski. He holds a Ph.D. in English Literature (Posner was an English major and had the makings of a first rate Yeats scholar) and a law degree. Bill has actually practiced law, too. He is an unreserved critic of the bench and bar in much the same way as Posner. Like Posner, Bill is also a writer of astonishing gifts as I observed here in 2014. Of interest to CDLs, according to Bill’s web site, he has handled “more than two hundred cases in federal court covering the full range of crimes set out in the United States Code.”
** It is worth noting, and emphasizing, that Posner was not fooled by Scalia’s slippery (disingenuous?) footnote 9 in Blakely (“The Federal Guidelines are not before us, and we express no opinion on them.”) By comparison, Posner’s intellectual abilities make Scalia seem slightly dim witted.
***Easterbrook’s temperament on the bench is compared to Posner’s. While Posner hunts to feed his intellectual hunger, sometimes using tooth and claw at oral argument, Easterbrook is seen hunting at oral argument for the sheer joy of the ensuing bloody and prolonged slaughter.
****Posner did not discuss his wife, Charlene Posner, or two sons (Kenneth and Eric) with Domnarski. Eric is himself a highly regarded law professor at Chicago. If my research is correct, Kenneth is a CPA with an English degree from Yale and MBA with honors from the University of Chicago, who now works as Chief of Strategic Planning and Investor Relations at Capital Bank Financial Corp.
Notify me of follow-up comments by email.
Notify me of new posts by email.
By submitting a comment here you grant this site a perpetual license to reproduce your words and name/web site in attribution.
“Next closet judge” sb “next closest judge”
Thanks for the catch. Sorry for the error.
All the best.
“Hands down, Posner is the most important judicial writer and thinker of the modern age and that includes every member of the Supreme Court and such luminaries as Judge Easterbrook and Judge Henry Friendly.”
Counterpoint: Posner is vastly overrated. More than anything, he’s worked out the implications of others’ brilliant ideas (i.e., Henry Manne). He’s more ‘quoted’ than cited, an artifact of his non-stop pounding on his typewriter and linguistic gifts. And, for all his brilliance, he’s, well, oddly sloppy. Orin Kerr put it best:
“I am often filled with a mild sense of both excitement and dread when I learn that Judge Posner has authored an opinion in areas of law that I follow closely. Excitement, because I know it will be fascinating to read. And dread, because I know it will be filled with extensive error-prone dicta on issues not briefed and reasoning that is hard to square with existing precedents.”
When he’s bad, he’s really bad, if not bizarre (i.e., comparing the restraints on judicial notice to the barons at Runnymede). Particularly where his off-bench work is concerned (i.e., his adolescent and unhinged attacks on Scalia and Garner).
He may be great at solving puzzles; however, his effect on the big picture is much less. Unlike Scalia, Manne, Bork, and at least a dozen others (hell, Volokh might be on that list), had Posner never been, it’s the law wouldn’t be any different today. Frankly, whatever you call his approach — textual skepticism? Dismal pragmatism? “Look ma, no hands”? — that ain’t how judges do or should think.
Bottom line: Don’t trust cat-people (see, e.g., the entire Middle East).
All good points especially about cat-people. I except our mean ass editor who loves cats. I trust him implicitly despite his affinity for the feline.
I, too, have been highly critical of Judge Posner. Last year, I wrote a post entitled, “In this instance, Judge Posner lied.” The post is available here:
I appreciate your taking the time to write. All the best.
PS By the way, Professor Kerr and I have a “history.” So, it is ironic that you cite him. That said, Kerr’s quote is a good one. It succinctly summarizes the fact that Posner’s great strengths not infrequently become great weaknesses.
Huh, so you two do. But, for the record, that’s not irony: What might have been ironic is if *you* had cited Kerr’s public calling out of another judge. Also potentially ironic: A biography written in, and reflecting on, Posner’s golden years with no attention paid to Posner’s under-appreciated “Aging and Old Age.” (Maybe i’m wrong as I’ve only flipped through the bio; but this seems to be a glaring omission, a chapter that would almost write itself).
Regarding Professor Kerr, thank you for the lesson on irony. Perhaps I had in mind another characterization that I preferred to avoid. Perhaps I also used the word “irony” instead to hide the fact that you slightly pissed me off by quoting Kerr. Again, I readily agree that Professor Kerr’s quote was a good one and captures one aspect of Posner very well.
Anyway, Domnarski does take us chronologically through Posner’s judicial and intellectual life and there are a few scattered quotes from Posner about his own sense of aging and mortality. There is also a fascinating exchange of correspondence between Posner and Martha Craven Nussbaum, the philosopher, on death.
Finally, as to whether Posner changed the law in a lasting way or whether his thoughts are original (pun not intended), you and I simply disagree. He certainly made this judge far less dumb.
Again, and truly, thanks for the engagement. All the best.