Judge Richard Posner Corrects The Record Regarding His Supreme Court Comments
Two important clarifications from Judge Posner about his controversial remarks.
Judge Richard Posner (Photo by Chensiyuan via Wikimedia Commons.)
Earlier this week, we reported on Judge Richard Posner’s controversial comments about the U.S. Supreme Court. The prominent jurist’s remarks won widespread coverage — and some criticism — in a broad range of outlets.
We recently received the following clarification from Judge Posner:
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Your post is for the most part accurate, but there are two minor errors in it — which may well be my errors rather than errors in transcription. They’re certainly not your errors.
First, I had never meant to suggest that only one of the Justices has trial experience. My point, rather, or my intended point, was that only Sotomayor had been a trial judge. I don’t mean to suggest that only former trial judges should be appointed to the Supreme Court, but rather that all appellate judges should have tried cases. When I was appointed to the Seventh Circuit in 1981, I had never been a trial judge. One of the senior judges (a former chief judge) of the court told me that I needed such experience and should therefore volunteer to conduct trials in the district courts of the circuit. I thought that was excellent advice, and I have been conducting trials in those courts (mainly the district court in Chicago, but not exclusively), both civil and criminal, trial and bench, ever since, plus pretrial both in cases that went to trial and cases that didn’t. I regard my trial court experience as extremely valuable to my appellate court work and I believe that every appellate judge, including Supreme Court Justices, who have not been trial judges should volunteer to conduct trials, because you can’t understand the trial process merely by reading transcripts and other documents. You have to screen the jurors, decide on the jury instructions, observe the witnesses and the lawyers, set time limits; above all, in a criminal case in which the defendant is convicted, you must impose a sentence–that is by far the most difficult phase of a criminal trial.
The only appellate judge I know who has done this besides me was Chief Justice Rehnquist, who tried one (I believe only one) case. And he was reversed by the court of appeals (I think it was the Fourth Circuit)! (My trial decisions have been reversed a few times also.) Rehnquist didn’t try again.
The second correction I’d like to see made has to do with my saying that none of the sitting Justices (plus Scalia) is “qualified” for the Supreme Court except Ginsburg and Breyer. This could be misunderstood to mean that I think the others lack the necessary paper credentials, of which the most important are graduating from a law school and passing the bar exam (though one of our greatest Justices, Robert Jackson, had just a year of law school, and did not graduate). That was not my intention in using the word “qualified” (if I did use it). I meant good enough to be a Supreme Court Justice. There are something like 1.2 million American lawyers, some of whom are extremely smart, fair minded, experienced, etc. I sometimes ask myself: whether the nine current Supreme Court Justices (I’m restoring Scalia to life for this purpose) are the nine best-qualified lawyers to be Justices. Obviously not. Are they nine of the best 100? Obviously not. Nine of the best 1,000? I don’t think so. Nine of the best 10,000? I’ll give them that.
I know I said some harsh things in my bookstore talk about the Supreme Court and the Justices. I stand by all that. I think the Court is at a nadir. I don’t think it’s well managed and I don’t think the Justices are doing a good job. Of course that is not a case that I can make in a bookstore talk. I am writing a book about the federal judiciary which contains a chapter of more than one hundred pages setting forth my views of the current Court and my grounds for those views. So stay tuned.
We shall! Thanks to Judge Posner for these clarifications, and apologies for any misimpressions conveyed in our earlier story.
UPDATE (10/29/2016, 10:40 a.m.): Judge Posner (and others) have contacted me to provide other examples of appellate judges who have sat as trial judges. The most prominent is Judge Alex Kozinski, but some of his Ninth Circuit colleagues have as well, including Judge Carlos Bea and Judge Margaret McKeown.
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David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.
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