The jurisprudential wrestling match between Justice Antonin Scalia and Judge Richard Posner is quickly turning into a WWE tag team battle royal. Tagging in to help Justice Scalia: Bryan Garner, one of the foremost authorities on legal writing and legal language. Professor Garner, of course, is Justice Scalia’s co-author on Reading Law (affiliate link).
Professor Garner is not happy with Judge Posner’s treatment of the book. Let’s hear what he has to say — and also speculate on how the Posner/Scalia tiff might affect Posner’s feeding of law clerks to Scalia….
Bryan Garner’s response to Judge Posner strikes me as highly persuasive. It begins on a personal note (suggesting to me that even if Judge Posner isn’t taking this personally, Scalia and Garner might be):
Hardly was I surprised that Judge Richard A. Posner did not warmly embrace Reading Law, the book on textualism I coauthored with Justice Antonin Scalia. But I was unduly sanguine in thinking that my friendship with Judge Posner (such as it is — we’ve shared several meals since the 1990s and have always had convivial conversations) would ensure at least a fair reading of our book on “fair reading.”
(Random aside: a friend of mine suggested on Facebook that “Hardly was I surprised” seems like “a bit of an awkward opening from the dean of clear prose.” But I suspect that Garner has his reasons; he puts a great deal of thought into every sentence of his.)
The tendentious hostility of Posner’s review in The New Republic, containing allegations of pervasive misrepresentations in the new Scalia‑Garner book, did come as a surprise—a most disappointing one. A response is in order.
I’ll save you the Googling. “Tendentious” means “expressing or intending to promote a particular cause or point of view, esp. a controversial one.”
After referring to Ed Whelan’s posts for National Review Online (which I also mentioned yesterday), which he praises for doing “a masterly job” of refuting Posner’s specific criticisms, Garner explains what he and Scalia are trying to do with Reading Law:
Most of Judge Posner’s criticisms of our research were founded on the assertion that the cases cited used, in their rationales, more than the single canon being illustrated. That would be a telling criticism if the purpose of the cases had been to show the authoritativeness of the canon. But that was not the purpose. In choosing cases, we wanted examples that (1) contained lively problems that could be readily explained without bogging down readers, and (2) involved discrete textual points. We were looking for interesting issues that would illustrate good textualism — through our explanations. All the canons discussed are well established and have been frequently applied; the examples are there merely to show how each particular canon works. That a given court considered other factors besides the canon is quite irrelevant to our purpose. Indeed, it would be very hard to find examples in which a single canon was the sole basis for the decision.
Professor Garner argues that Judge Posner has misapprehended the point of the book:
Perhaps the biggest [misstatement by Judge Posner] is this non sequitur: “Heller [the gun‑control case] is the best‑known and the most heavily criticized of Justice Scalia’s opinions. Reading Law is Scalia’s response to the criticism.”
What? I spent three‑and‑a‑half years immersing myself in the literature of statutory interpretation, scouring hundreds of books and a thousand‑plus articles to write a full‑length treatise, merely to help my coauthor respond to criticism about one case? What a breathtakingly and self‑evidently farcical statement.
Burn…. It might have been unseemly for Justice Scalia to go after Judge Posner too aggressively — Supreme Court justices should be above the fray — but there’s no impediment to the justice’s co-author doing so.
There’s so much more in Bryan Garner’s review, which you should read in full. I’ll just share with you the conclusion, which pulls no punches:
Edward Whelan has demanded that Judge Posner run a prominent retraction and apology. That would be gratifying, since reputations can be marred by such a high‑profile literary rampage. But I’m not holding my breath.
That’s probably a reasonable expectation on Professor Garner’s part. Richard Posner is a federal judge, and as I’ve previously written, “Life tenure means never having to say you’re sorry.”
Now, on to the speculation about what this spat might mean for Judge Posner’s track record as a feeder judge. The varying abilities of prominent lower-court judges to “feed” their clerks into Supreme Court clerkships are a subject of great interest to me.
Judge Posner could be described as a “mid-range” feeder to Justice Scalia. He’s no Alex Kozinski or Jeff Sutton, but he has sent at least four clerks to the Scalia chambers over the years. If you look at the great Wikipedia list of SCOTUS clerks, though, you’ll notice that the last Posner feed to Scalia was Scott Hemphill, back in October Term 2003. In other words, in recent years Posner’s feeding to Scalia has dried up a bit.
One ATL source offers this speculation:
Word around One First Street is that after Posner and [Judge J. Harvie] Wilkinson criticized Heller, Justice Scalia was not pleased.
During his public talks, he noted a “breezy magazine article” that referred to originalism as “law office history,” and he spent the better part of the talks explaining why this was wrong. That’s fine, but also, behind the scenes, he stopped interviewing or hiring Posner or Wilkinson people.
He turned around a bit recently, but I suspect after the most recent back and forth, Posner clerks will be shut out for a while.
District of Columbia v. Heller came down in June 2008, and Judge Posner’s critical article appeared in August 2008. No Posner clerk has gone to Scalia since then.
Judge Wilkinson’s feeding may also have been affected. His law review piece criticizing Heller went online at SSRN in September 2008 and was finalized in May 2009. In October Term 2009, Justice Scalia had one Wilkinson clerk, Katherine Twomey (who was probably hired before Judge Wilkinson’s article was published in final form). But then Justice Scalia had no Wilkinson clerks for two full Terms, OT 2010 and OT 2011. That might not seem like a big deal — the vast majority of federal judges have never fed any clerks to Scalia — but it is when viewed against Wilkinson’s historical feeding record. In the three terms leading up to OT 2008, Justice Scalia had a Wilkinson clerk in chambers every single Term.
On the other hand, I might be reading too much into all this. There’s a great deal of randomness to the hiring of SCOTUS clerks. Perhaps Justice Scalia interviewed Wilkinson clerks for OT 2010 and OT 2011 but just liked other candidates better in those particular years. But it’s much more fun and more dramatic to imagine a personal grudge affecting law clerk hiring. This is the stuff that fiction gets written about, isn’t it?
P.S. If you find federal judges fascinating and enjoy listening to podcasts, check out this podcast featuring Judge Posner, Professor Lior Strahilevitz, and yours truly. I swear we didn’t have a laugh track; U. Chicago law students just really enjoy jokes about federal judges.
Response to Richard A. Posner [LawProse Blog]
The Incoherence of Antonin Scalia [The New Republic]
Richard A. Posner’s Badly Confused Attack on Scalia/Garner [Bench Memos / National Review Online]
Of Guns, Abortions, and the Unraveling Rule of Law [Virginia Law Review via SSRN]
In Defense of Looseness [The New Republic]
Reading Law [Amazon (affiliate link)]
Richard Posner and David Lat: “Judges as Public Figures” [University of Chicago Law School]
Supreme Ambitions: Preface