Judge Posner, Uncensored: 'I Don't Really Care What People Think'

The recently retired Richard Posner has lost none of his famous candor.

Judge Richard Posner (via C-SPAN)

In the little legal bubble of Above the Law, the retirement of Judge Richard Posner from the Seventh Circuit was big, big news. Since his surprise retirement right before Labor Day, we’ve offered wall-to-wall coverage and commentary, including the backstory behind his retirement, a retrospective of his appearances in our pages, a collection of tributes from his former law clerks, and reflections on career paths and the aging process that were triggered by his departure.

But what does Richard Posner have to say about Richard Posner’s retirement? Earlier this week, I connected with Judge Posner for a wide-ranging phone interview.

Here’s a (somewhat edited and condensed) write-up of my conversation with this brilliant and blunt, candid and controversial jurist.

DL: Congratulations on your retirement! Are you going to Disney World?

RAP: No.

DL: Are you going to… spend more time with your family?

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RAP: I don’t think so. I spent a lot of time at home even when I was judging.

DL: What about travel, visiting the destinations on your “bucket list” — say, the Himalayas?

RAP: No.

DL: You took total retirement. Why not senior status instead, with a very reduced workload?

RAP: That’s a good question. I didn’t really think about it!

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DL: There’s a Twitter feed that channels you, @Posner_Thoughts, and now a book based on the Twitter feed, for which you wrote the foreword. Might you go on social media in your retirement?

RAP: I never thought of it, but someone sent me an email saying I should tweet. I don’t think it’s my cup of tea, but I’ll give it some thought.

DL: You retired in the middle of the year. What about your clerks, either for this current term or any future terms you might have hired for?

RAP: I had four law clerks. One was quickly hired by another judge. The other three are being used by the court as floating law clerks — so if a judge needs additional help, one of my law clerks will be assigned.

I had hired clerks to start next summer. But I had to tell them that I couldn’t have law clerks anymore because I had quit. They were understanding about it, and I’m sure they’ll get good jobs.

DL: As you’ve explained in several interviews — with the Chicago Daily Law Bulletin, with me for these pages, and with Adam Liptak of the New York Times — you resigned in part because of your disagreements with colleagues about the Seventh Circuit’s treatment of pro se litigants. I know you discuss this in detail in your new book (affiliate link) — can you offer us a little preview?

RAP: Pro se litigants, by definition, don’t have a lawyer. This generally means they don’t have money to hire a lawyer. So they have to litigate for themselves. They’re handicapped by not having money and not having a lawyer, and they also tend to have limited education. About half of our appeals are by pro se’s, and about half of those are prison inmates.

When pro se litigants appeal, their appeal papers are given to a staff attorney. We have about 20 staff attorneys who are appointed for two years, and a few supervisors. The staff attorneys tend to be good students from good schools, hired right after they graduate. Despite their good credentials, they tend to be hostile to the pro se’s. It’s not their own feelings; it’s that they sense — correctly — that the judges don’t really care much about the pro se’s, find them nuisances, and are not interested in them. So that percolates down to the staff attorneys, and they have a tendency to go against the pro se appeals even when they have apparent merit.

So very often, a staff attorney memo recommending dismissal of the appeal gives rise to a very short, very rapidly issued order by a judicial panel, not published in the Federal Reporter, that tends to be perfunctory. One of my former colleagues thinks that two words are enough for an order dismissing a pro se appeal: “Appeal dismissed.”

I didn’t think the pro se litigants were getting a fair break. I made various suggestions, all of which were rejected. I wasn’t making progress in helping the pro se’s. And I didn’t have good relations anymore with the other judges — not really on a personal level, but we just didn’t see eye to eye on the pro ses.

So I stepped down from the bench and published my newest book, which is now out: Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments (affiliate link).

DL: As reflected in its title, your new book also addresses the controversial subject of cameras in the courtroom. Can you say a bit about that?

RAP: Should the Seventh Circuit allow televising of oral arguments? The court has never done that. Last November 30, we had two en banc cases scheduled, and they were interesting cases. Two weeks in advance of the arguments, C-SPAN said they would like to come and televise the arguments, and they’d bring their own equipment.

I don’t know quite what happened, but nothing happened. A couple of months later, February I think, the chief judge called a meeting of the court to discuss the issue. By then of course it was too late for C-SPAN — the arguments had been held on November 30 — and the judges were poorly prepared to discuss the subject.

I was the best prepared, having read the literature on cameras in the court. I had also reached out to my friend [and longtime Ninth Circuit judge] Alex Kozinski, and we had a long chat about the Ninth Circuit’s experience in televising arguments. They’ve been doing it for twenty years. I asked him if there had been any untoward incidents, the main concern of my colleagues — the fear that someone will see them on television, get angry, and accost them on the street or even assault them.

Alex said there had never been an incident. On the contrary, the audience actually sees that the judges seem dignified, intelligent, and polite. (I say “seem” because that doesn’t mean the judges actually are like that; they’re on TV, and they’re performing). As a result, the esteem in which the Ninth Circuit is held has increased.

I’ve thought from the beginning that the case for allowing the televising of arguments was overwhelming.

DL: You made efforts to change the Seventh Circuit’s approach to pro se litigants before retiring. Did you also raise the issue of cameras in the courtroom?

RAP: I raised the issue in a meeting with the chief judge about some other subject. [Chief Judge Diane P. Wood] had appointed a committee to examine the issue. She hadn’t appointed me to the committee, even though I was the only judge prepared on these issues, but I asked her at this meeting we had in June how the committee was going.

She said “all right” — whatever that means — but identified a new problem. She said Trump was trying to curtail the federal budget, specifically the judicial budget, and as a result she didn’t think the court would be able to afford to buy the necessary television equipment.

So I said to her, if the court can’t afford the equipment, I would be glad to buy the equipment with my own money and “rent” it to the court for a nominal fee. I asked her how much this might cost. She said at least $100,000. I said I’d pay as much as $200,000 out of my own pocket — I’d be happy to blow that amount of money. She said no. She didn’t say why. She just said she didn’t want to do that.

DL: Your concern for the plight of pro se litigants is commendable, but let’s be honest: aren’t most of their claims meritless or frivolous?

RAP: I’m sure that a majority of them lack merit and have to be denied. I don’t object to dismissing a demonstrably frivolous appeal, or even barring a pro se from filing future suits. But half of the non-pro se litigants lose their cases too; losing is an ineradicable part of the judicial process.

The important thing is that if there are a significant number of people with meritorious cases who are unable, because of the system or because of their own limitations, to advance meritorious claims, they ought to be heard.

DL: Shifting gears a bit… you’ve made some candid and at times rather harsh comments about the current Supreme Court. How would you respond to the charge that your comments are triggered by “SCOTUS envy”?

RAP: I’m very delighted not to be on the Supreme Court. It’s a very bad court — the way they run things, the way they do business, is very bad.

They have a very light caseload. They sit as a court of nine, instead of in panels. If they sat in three-justice panels, they could decide three times as many cases.

And they’re selected on strictly political grounds, with no effort to select the best people. It’s a big mistake to have any judges appointed by politicians. Why would you want a judge appointed by a politician? Politicians don’t care about quality — they care about what this judge or justice can do for my reputation, my legislation, and other policies I like.

DL: Speaking of the judicial nomination process, do you care that Donald Trump will appoint your successor?

RAP: Not really. There are four vacancies on our court, and they’ll all be filled by President Trump. And that’s the way the system operates. I don’t like the idea of politicians appointing judges, but I can’t do anything about it.

DL: Who would you want to see on the Supreme Court? Maybe your cat, Pixie?

No. Pixie is going to be president.

DL: If Pixie were to win the 2020 presidential election, what approach would she take to judicial, especially Supreme Court, appointments?

RAP: I think she’d want a very strong feline representation on the federal courts. The specifics of that — what weight she would give to the cat’s sex, fur coloring, or age — I don’t know.

DL: In the statement about your departure, you talked about your pride in advancing pragmatism on the bench. But who else follows Posnerian pragmatism? It seems you are a lone voice in the wilderness, and the vast majority of judges are — or claim to be — formalists.

RAP: Oh, I agree on judges professing to be formalists. But I think a lot of judges are actually pragmatic, with their pragmatism covered by a layer of formalism to make it look respectable.

DL: But what exactly is the difference between “pragmatism” and “legislating from the bench,” or just deciding cases based on your own policy preferences?

RAP: There’s certainly an element of that in pragmatism. What I think of pragmatism is focusing on consequences — you want to issue decisions with good consequences, not bad consequences. And undoubtedly your priors will play a role in giving you a sense of good versus bad consequences.

DL: Even if legal formalism is an illusion, isn’t it a good or useful fiction? Isn’t there a reason that judges from across the ideological spectrum at least claim to be formalists?

RAP: Well, the reason is that a judge is much more comfortable if he can create an impression that his decisions are not the result of what he personally thinks but what he has simply discovered to be “the law.” That’s unrealistic. The judge reacts to a case and leans one way or another.

Think of a case as just a dispute. What is the sensible resolution of the dispute? Forget about the law. What is sensible? If you derive a sensible resolution, then is there something that blocks it — a clearly applicable statute, for example? And that’s really all there is to judicial decisionmaking.

DL: You are famously candid. Do you think your bluntness alienates some people — and if so, isn’t that not very pragmatic?

RAP: I don’t really care what people think.

DL: Well, it’s good that you were an academic and then a judge! If you couldn’t be a judge or academic, what would you want to be?

RAP: Well, I think the non-judicial, non-academic job I would be best at would be supermarket bagger. I’ve observed that at the checkout counter, and I think that would be something within my ability. I could manage a cat shelter also, but that would be more challenging.

DL: Do you actually buy your own groceries? In Larissa MacFarquhar’s famous New Yorker profile of you, it sounded like your wife Charlene basically handled all day-to-day tasks, leaving you free to dwell in the realm of ideas.

RAP: That used to be the case — not any more. We have a very good supermarket within short walking distance of our house called Treasure Island, a Chicago chain, and I go there and I buy food. I share the burden with Charlene.

DL: Congratulations again on your retirement. Would it be okay for me to check in with you from time to time, to get Richard Posner’s thoughts on the world?

RAP: Sure. I’ve enjoyed this talk, and I like Above the Law. I look forward to reading your piece.

UPDATE (9/15/2017, 2:30 p.m.): Chief Judge Diane Wood of the Seventh Circuit has this response to Judge Posner’s complaints.

Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments [Amazon]

Earlier:


DBL square headshotDavid 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 dlat@abovethelaw.com.