Like many legal geniuses, Judge Richard Posner of the Seventh Circuit has strong opinions. And he’s very confident in them — perhaps too confident, according to his critics — as you can see when he rips into hapless advocates at oral argument.
But to his credit, Judge Posner can admit when he’s wrong. Perhaps the most famous example of this was his change of heart on voter ID laws — although reasonable minds can disagree over the extent of and reasons for the reversal.
Here is a much clearer confession of error by the distinguished jurist. Yesterday, in analyzing the Seventh Circuit’s en banc decision in Hively v. Ivy Tech Community College (holding that sexual-orientation discrimination violates Title VII), I wrote:
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Competing with these lines for the most fun part of Judge Posner’s opinion is what I’d describe as a list of his Favorite Gays of All Time (p. 31):
‘We now understand that homosexual men and women (and also bisexuals, defined as having both homosexual and heterosexual orientations) are normal in the ways that count, and beyond that have made many outstanding intellectual and cultural contributions to society (think for example of Tchaikovsky, Oscar Wilde, Jane Addams, André Gide, Thomas Mann, Marlene Dietrich, Bayard Rustin, Alan Turing, Alec Guinness, Leonard Bernstein, Van Cliburn, and James Baldwin—a very partial list).’
A very partial list indeed! Where’s Leonardo da Vinci? Alexander the Great? Elton John? It’s an idiosyncratic collection, to say the least.
I asked Judge Posner how he came up with his list of great gays — and why he omitted others. He responded:
I think Alexander was bisexual. But yes, Leonardo could have been included. I just reeled off the names that came first to mind.
He then added, in a subsequent message after reading my post:
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David, I liked your article, but — I’m very embarrassed to have omitted Elton John! I love his music. He’s my favorite popular musician. I can do without Alexander but not without Elton John.
Hold me closer, tiny dancer! If you imagined Richard Posner as listening exclusively to classical music, too serious or too old (at 78) to enjoy pop music, you’d be wrong. As a matter of fact, Judge Posner proudly informed me,
I have approximately 100 popular-music disks.
Impressive! That sounds like quite a collection.
But on the other hand… maybe it’s time to take judicial notice of Pandora or Spotify?
Earlier: A Judicial Battle Royal At The Seventh Circuit — And Judge Posner’s Favorite Gays Of All Time
David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at [email protected].