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Monday, December 01, 2003

20 Questions for Circuit Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit: "How Appealing" is so very pleased that Circuit Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit has agreed to participate in this Web log�s monthly feature, "20 Questions for the Appellate Judge."

According to a biography accessible online here, Judge Posner was born in New York City in January 11, 1939. He attended undergraduate school at Yale, where he was elected to Phi Beta Kappa his junior year and graduated summa cum laude. He then attended law school at Harvard, where he served as president of the Harvard Law Review and graduated first in his class. After law school, he clerked for Associate Justice William J. Brennan, Jr. of the Supreme Court of the United States. Thereafter, Posner served from 1963-1965 as assistant to Commissioner Philip Elman of the Federal Trade Commission, from 1965-1967 as assistant to Solicitor General Thurgood Marshall, and from 1967-1968 as general counsel to President Lyndon B. Johnson's Task Force on Communications Policy.

From 1968-1969, Posner taught as an associate professor at Stanford Law School. In 1969, he became a professor of law at the University of Chicago, a job he held until 1981 when he was confirmed to the bench. Since 1981, Judge Posner has continued to teach at the University of Chicago Law School part-time as a senior lecturer, and this Web page provides many more details about his academic and professional accomplishments.

On October 27, 1981, President Ronald W. Reagan nominated Posner to fill a vacancy on the U.S. Court of Appeals for the Seventh Circuit. In less than one month's time, the U.S. Senate confirmed him for the post. From 1993 through 2000, he served as the Seventh Circuit's Chief Judge.

Judge Posner has his chambers in Chicago, which is where the Seventh Circuit has its headquarters.

Questions appear below in italics, and Judge Posner's responses follow in plain text.

1. What are your most favorite and least favorite aspects of being a federal appellate judge?

Most favorite aspects: the variety of cases, which has greatly broadened my knowledge of law, government, and human nature, and given me the opportunity to write judicial opinions, a rhetorical exercise that I greatly enjoy along with the give and take of oral argument. Least favorite aspects of the job: some of the cases are dull, and the average quality of briefs is pretty low.

2. Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.

Oliver Wendell Holmes (who was both), probably the only genius in the history of American law, whom I greatly admire for his candor, eloquence, wit, toughmindedness, and judicial creativity. Think only of his labor opinions for the Massachusetts Supreme Judicial Court, his Supreme Court dissents in Abrams and Lochner, and in other free speech and substantive due process cases, and a number of great tort cases.

3. How did you come to President Reagan�s attention as a potential Seventh Circuit nominee, when did you first realize that you might be interested in becoming a federal appellate judge, and what concerns if any did you have in 1981 about giving up some or all of your other work to become a judge?

I believe that William F. Baxter, the head of the antitrust division and a former colleague of mine at Stanford, suggested my name. I hadn't previously had any thought of becoming a judge. My principal concern in accepting the judgeship was the financial sacrifice, because I had a large income from consulting.

4. The confirmation process that nominees for U.S. Court of Appeals vacancies must undergo is quite a bit more politicized today than when you experienced it in 1981. Does the current tenor of the confirmation process cause you any concern? Had your nomination come before today's U.S. Senate, do you fear that it would have been filibustered? What if anything realistically can be done to improve the nomination and confirmation process, or do you believe the process is working as it should given the significant role that you say an appellate judge's ideology plays in reaching decisions?

I would have some trouble being confirmed today, though I might squeeze through the way Mike McConnell did, with support from liberal law professors like Cass Sunstein. (My notorious "baby selling" article had been published before I became a judge, yet didn't block me. And, by the way, let me take this opportunity to correct the record: neither in the article, nor in my subsequent writing on family law and economics, have I ever advocated "baby selling." I have merely pointed out the consequences of the present legal regime, in which monetary transfers incident to adoption are (nominally) capped, and have suggested, by way of experiment only, that some adoption agencies be permitted to pay women contemplating abortion to carry the fetus to term and put the newborn child up for adoption. I continue to think it would be a worthwhile experiment.) I don't object to the fact that Senators are concerned about the ideology of judicial candidates; the President is concerned, so why shouldn't the Senators be? Anyone who is realistic about the American judicial process knows that ideology affects decisions, especially the "hot button" decisions that engage the attention of politicians; and Senators are politicians. What is objectionable about the current process is the length of time it takes. I don't see why it couldn't be compressed. Between the time that I agreed to accept appointment as a judge, which was near the end of June 1981, to the time I was confirmed by the Senate, which I think was sometime in November, about five months elapsed, and I don't see why the process should take any longer than that.

5. You have for many years described your judicial philosophy as one of "judicial pragmatism." For those readers of this interview who have not previously encountered your description of what that means, would you please explain the term and how your approach to judging works in practice.

There isn't space enough for me to answer this question fully, and instead let me refer readers to my book Law, Pragmatism, and Democracy (Harvard University Press, 2003), and to an earlier book, Overcoming Law (Harvard University Press, 1995). The essence of judicial pragmatism, or at least my version of it, is recognition that difficult cases--and they are legion in our system--cannot be resolved at the appellate level by a distinctive process of reasoning called "legal reasoning," emphasizing careful parsing of text and scrupulous adherence to precedent and an analytical method that resembles deductive logic. Those methods do not resolve difficult legal cases, but merely conceal the true springs of decision in such a case, which involve a careful examination of the practical consequences of a decision for or against the appellant. The pragmatist emphasizes the continuity of facts and law, and the importance of common sense, experience, values, and yes, ideology in resolving cases when the conventional materials of judicial decision making--authoritative texts, precedent, deduction, and so forth--run out, as they so frequently do. This is not to deny the virtues, which are thoroughly pragmatic, of logic, fidelity to text, and adherence to precedent, techniques that can resolve most cases--only not the most challenging ones. The pretense that they can is particularly threadbare in the Supreme Court, which decides a very high percentage of cases that are in fact indeterminate from the standpoint of orthodox legal analytics. In any split decision by the Supreme Court, to say that one side is "right" and the other "wrong" is usually a na�ve reaction.

6. A 1998 study of federal appellate judicial opinions issued between 1982 and 1995 found that your opinions were, by an "unusual" statistical margin, cited by judges in other circuits more often than opinions written by any other judge. The study argued that citation by judges in other circuits is the best indicator of judicial influence, making you the most influential federal appellate judge in the country. Given that you are yourself a student of citation studies -- having prepared them to analyze the influence of opinions by Cardozo and Hand, and having critiqued citation studies elsewhere -- to what do you attribute your top ranking? To your practice of writing opinions yourself, to your issuing more opinions than other judges, to your wide-ranging extracurricular writings and speeches, or to something else entirely?

I don't see how I can answer this question without seeming to brag. You really ought to ask the judges who cite me why they do so. Obviously one factor in my being cited a lot is that I write more opinions than other federal appellate judges, and it may help as well that I do write my own opinions and that I try to be clear and frank and practical, and if I am right that pragmatism is the secret story of our courts these are qualities in a judicial opinion that should appeal to other judges.

7. Would Justice Posner of the U.S. Supreme Court have been as distinguished a jurist as Judge Posner of the U.S. Court of Appeals for the Seventh Circuit, keeping in mind, to pick one example, how Justice Cardozo's output on the U.S. Supreme Court differed from Judge Cardozo's output on the New York Court of Appeals?

Cardozo didn't have a chance to show his stuff on the Supreme Court. He served for only six years, and actually did quite well--his opinions are heavily cited, as I pointed out in my book Cardozo: A Study in Reputation (University of Chicago Press, 1990). Because he served three times as long on the New York Court of Appeals, it is inevitable that his work on that court should have overshadowed his work on the Supreme Court. I have no idea how I'd do as a Supreme Court Justice. I think the Court is short in political experience, and I would add nothing from that angle. I also note that judges who do well on lower courts sometimes disappoint as Supreme Court Justices.

8. How have you benefited in your work as an appellate judge from serving on occasion by designation as a trial court judge? Might not trial court judges likewise gain worthwhile insights by serving by designation as appellate court judges? Why has the Seventh Circuit not recently allowed its trial court judges to have that experience?

I think I've learned a lot from my ventures into the trial court, particularly about the limitations of the adversarial model of factfinding, about the psychological pressures of trials on district judges, and about the differences between the facts as they are developed in a trial and the facts as they appear in the briefs and record of a case when it reaches the court of appeals. The academic work that I've done on the law of evidence, and, more recently, academic work that I've done with the economist William Landes on patent law, and still more recent academic work that I am doing on the law's response to the complexities of modern science, stem directly from my experiences presiding at trials.

I have no objection in principle to designating district judges to sit on the court of appeals. The practical objection to any visiting judges, trial or appellate, is that by increasing the de facto size of the court the use of visiting judges makes it more difficult to maintain a reasonable uniformity of approach and decisions--to anticipate the next question.

9. What is your view on whether the Ninth Circuit -- which now is authorized to have twenty-eight active judges and might soon be expanded to thirty-five active judges -- should be split into two or more smaller circuits, and is there a particular manner of dividing the Ninth Circuit that you view as best? Also, in your June 2000 article titled "Is the Ninth Circuit too Large: A Statistical Study of Judicial Quality" published in the Journal of Legal Studies, you concluded that the Ninth Circuit's size was not the direct cause of that circuit's uniquely high rate of summary reversals by the U.S. Supreme Court. What else may explain the Ninth Circuit's summary reversal rate on which your article focused?

I think it should be split, not so much because the size per se of an appellate court is inimical to quality, although I think it is, though I cannot prove it, as you note; the larger the court, the more difficult to maintain coherence and collegiality. The particular virtue of splitting would be that it would remedy the worst feature of the Ninth Circuit, namely its bobtailed en banc procedure, whereby the chief judge plus 10 judges chosen at random constitute the en banc panel, leaving 17 judges out, who may include all the judges of the original panel! It is an absurd system, which encourages fission because the three-judge panel that decides the case initially knows that, with luck, the en banc panel will not overturn the three-judge panel's decision even if the decision is contrary to the views of the court's majority as a whole. In the opposite case, in which an unrepresentative en banc panel overturns a representative three-judge panel, the judges of the court as a whole are unlikely to take the en banc decision entirely seriously in later cases. So you have a formula for infighting and doctrinal incoherence; and remember that the pragmatist does not deny the value of adherence to precedent in most cases. The article of mine that you mentioned made I think a compelling case that the Ninth Circuit is performing badly, a case reinforced by the impressions that almost everyone has who appears before the Ninth Circuit or reads its opinions.

10. Your opinions tend to be a pleasure to read, which is something that I cannot honestly say of the opinions written by the vast majority of your colleagues on the U.S. Courts of Appeals. Why, in your view, do not more of your colleagues endeavor to write opinions that are interesting and accessible? And now that you have written somewhere in the ballpark of 2,000 opinions, please list between one and five of them that are your all-time favorites.

I'm glad you like my opinions, but of course other judges also write opinions that are interesting and accessible. (Not that you said I did; but I wish to be clear on the point.) In general I think you'd find that the most interesting and accessible opinions are those that are judge-written rather than clerk-written, or if the clerk wrote a first draft the judge rewrote it thoroughly. The reason is not that the judges are smarter than the law clerks, though obviously they are more experienced, but that law clerks write as it were defensively, conscious of their inexperience and reluctant to produce something that looks like an individual product. Clerk-written opinions tend to a dreary uniformity and often fail to disclose the considerations that actually moved the court to its decision.

I can't pick out my five favorite opinions; that would require me to have all 2000-odd in my head, or to reread them all, which would be impossible. It's almost as if you were asking me to choose among my children. But I'll name a few that I think of fondly, most of which involve art (in however debased a sense) and intellectual property: Mucha, Piarowski, Gracen, Douglass, Nelson, and my absurdly frequent beanie-baby opinions. I would also count among my favorites several of my tort and contract opinions, my dissent in the partial birth abortion case (Hope Clinic), some of my class-action opinions, like Rhone-Poulenc, my recent IP opinions in Apotex (a district court opinion) and Aimster, my privacy opinion in Haynes, and my recent antitrust opinion in the High Fructose case--but I could extend the list quite a bit, to include a number of tax, ERISA, religion, and Indian cases, without going back and reading all 2000+.

11. You were criticized in some quarters for writing and speaking publicly about the Clinton-Lewinsky matter before it was known whether criminal charges against President Clinton would be pursued. Were your critics correct that your comments were in violation of the constraints that apply to federal judges? Are the existing rules clear enough concerning what matters of public interest sitting federal judges may comment on? And finally, if you could scrap the current system and replace it with a set of rules that made the most sense to you, what rules would you choose?

I think the current rules are fine. A judge is not permitted to comment publicly (except in a classroom) on a pending or impending case. I interpret "impending" narrowly, to mean a case that is about to be filed. Interpreted broadly, to mean a case that may someday be filed, it would gag judges, because almost no public issue is not a candidate for an eventual lawsuit. By the time my book on the Clinton-Lewinsky scandal and its aftermath was published, the impeachment trial had ended, in Clinton's acquittal. And while it was theoretically possible that he would be indicted, the probability was remote, and of course he was not, in the event, indicted. I took pains in the book to make clear that in the unlikely event of further proceedings of some sort, the decision would be based on the record compiled in those proceedings rather than on the record available to me when I wrote my book.

12. What advice do you have for lawyers who practice before your court about how they could improve the quality of their written briefs and their oral arguments? Also, a Westlaw search indicates that you may have argued several U.S. Supreme Court cases long before you became a judge. Which argument of yours would you rank as your best performance at the lectern, and how good of an appellate oral advocate were you?

My advice for lawyers practicing before me and my colleagues is threefold: always explain the purpose of a rule that you want us to apply in your favor, because the purpose of a rule delimits its scope and guides its application; always give us practical reasons for the result you are seeking; and don't overestimate the knowledge that an appellate judge brings to your case, because we have very little time to prepare for argument in depth, and the breadth of jurisdiction of the federal courts is such that we cannot possibly be experts in all or most of the fields out of which appeals arise.

I argued six cases when I was in the Solicitor General's office (1965�1967) (and one later). Two of the antitrust cases, Von's and Schwinn, that I argued when I was in the Solicitor General's office were the highlights of my brief career as an appellate advocate. I won't try to assess my performance in that role. My batting average was .600.

13. In the February 2003 installment of my monthly appellate column, I evaluated the quality and usefulness of federal appellate court Web sites. I ranked the Seventh Circuit's Web site as one of the two best, because of the easy access the site provides not only to published opinions but also to briefs, oral argument audiotapes, and free docket entry information. What role, if any, did you play in making the Seventh Circuit's Web site such a useful resource? Who else was involved in the effort? And please explain how and why the Seventh Circuit continued to offer online docket entry access free of charge, even after every other federal appellate court decided to follow the Judicial Conference's edict to charge a per-page access fee.

I can't take any credit for the Web site. The credit belongs to Gino Agnello, formerly the head of the Seventh Circuit's IT staff and now the court's Clerk, but still very active in technical matter, and the members of the IT staff, now headed by Mark Knoll. I don't remember why we decided not to charge an access fee, although I supported the decision when I was chief judge.

14. I must have read too many Judge Posner opinions before starting my judicial clerkship for a judge serving on the U.S. Court of Appeals for the Third Circuit, because early on I added into a draft opinion a passage that would have ordered an attorney to show cause for violating an important rule. I recall my judge's response was that we don't treat attorneys that way in the Third Circuit. Yet even as a practitioner I remain envious of the Seventh Circuit, where the rules are enforced almost mercilessly and amicus briefs are disdained greatly. Please say a few words to your colleagues on other circuits about why attorneys should be publicly called to task for violating court rules and why it makes sense to strictly referee motions for leave to file amicus briefs instead of letting all such briefs be filed and simply ignoring the unhelpful ones?

I think it's enormously important to maintain discipline in a court's bar. The rules have a purpose, most of them anyway, and if the judges allow the lawyers to flout them, the lawyers will flout them, gumming up the works. And lawyers who know they can get away with violating the court's rules develop a contemptuous attitude toward the court, reflected in their briefs and oral arguments, and contributing to docket congestion. Federal judges who do not enforce rules treat lawyers as if they were the judges' constituents, which they are not, because we are not elected officials.

Amicus curiae briefs are for the most part a complete waste of time and a complete waste of the amici's money. If an amicus curiae has some distinctive information or perspective to contribute to the consideration of the appeal, fine, but 99 out of 100 times the amicus curiae briefs filed with our court rehash the arguments in the brief of the party whom the amicus is supporting. My views on amicus curiae briefs are set forth at greater length in a recent opinion, Voices for Choices v. Illinois Bell Tel. Co., 339 F.3d 542 (7th Cir. 2003) (in chambers).

15. Time for a law and economics question. Is the salary now paid to federal appellate judges too low? What should federal appellate judges be paid or, perhaps less controversially, how would one determine what the proper salary should be?

I think the salary is too low, not because I consider myself underpaid, but because the current salary makes it difficult to hire successful lawyers from elite law firms, especially in cities in which the cost of living is very high, such as New York; and as a result the diversity of the federal judiciary is reduced along with the judiciary's sophistication in commercial cases. Not that there aren't plenty of qualified candidates even at the present salary level, which is about that of a second-year associate at a New York firm; I am concerned specifically about the judiciary's lacking the particular kinds of knowledge, experience, and perspective that the elite practitioners at such firms could bring to the court. But in any event there ought certainly be a cost of living differential to reflect the very large difference in the cost of living between large cities and semi-rural areas. That would alleviate the problem to a certain extent.

16. The committee in charge of considering amendments to the Federal Rules of Appellate Procedure is in the process of approving a new rule that would allow citation to unpublished, non-precedential decisions in briefs filed in all federal appellate courts. Where do you stand on the question of allowing citation to "unpublished" opinions; do you believe that federal appellate court panels should be able to designate some of their rulings as "non-precedential" upon issuance, or should the precedential value of an opinion be left to later panels to determine; and why?

I don't like the idea of allowing unpublished opinions to be cited, which is another way of saying that I think courts should be permitted to designate some of their decisions as nonprecedential and therefore not worth citing. (Apparently under the new rule, we won't be allowed to forbid citation of unpublished opinions, but will be allowed to deny precedential force to them, a combination that seems to me to make no sense.) Caseload pressures are such that judges cannot give adequate scrutiny to every decision. I predict that if courts were forbidden to designate certain decisions as nonprecedential, they would cease issuing reasoned opinions in such cases but instead would just say "Affirmed," which is already the practice in the busier circuits. Our court has always given reasons for its decisions, but if those reasons can come back to haunt us, even though they were actually reasons furnished by staff rather than by judges, we might stop doing so.

17. The Economist magazine recently reviewed your latest book, "Law, Pragmatism, and Democracy." The review, accessible here, describes you as "loony," states that your effort to explain your views suffers from their "incoherence," and then concludes with the following: "More troubling still is Mr Posner's view that judges should impose their own policy choices on a case whenever ambiguity in the law gives them the discretion to do so. Many judges do this, though nearly all deny it, justifying their decisions instead by reference to laws and court precedents. Mr Posner thinks this is usually legal flim-flammery, and that frank judicial activism would be better. Few people, on the right or the left, would swallow this. Mr Posner is a spirited analyst of contemporary politics, and he can be an entertaining and provocative thinker. His account of the controversial Supreme Court decision awarding George Bush the presidency is well worth reading. But as his book also makes clear, he is not much of a legal theorist, and he might have made a better legislator, academic or even political campaigner than a judge." Your response?

The (anonymous) author of the review doesn't know anything about the American judiciary (the Economist is an English magazine), and I would be surprised if he or she had ever read my opinions, or for that matter Law, Pragmatism, and Democracy. It is an academic book that the reviewer was incompetent to evaluate, and the use of the word "loony" reveals the reviewer's level of taste and sophistication. If you want to read a fair-minded review of the book, read the review in the New York Times Book Review (I think in September) by the distinguished English (!) philosopher Alan Ryan. [Editor's note: Alan Ryan's review can be found at this link.]

18. In December 2001, The New Yorker magazine published a profile of you. Were you pleased with how that turned out, and did the profile contain anything about you that you found to be incorrect or misleading? Also, my audience would be disappointed if I did not ask you to mention your celebrity cat.

I never miss an opportunity to mention Dinah, who is not only a celebrity, but is pedigreed, a beauty, and a serial mouser (52 mice to her credit), and in all these respects very much the superior of her nominal master. The New Yorker profile, which is by a fine journalist, Larissa MacFarquhar, was witty, perceptive, and on the whole accurate, though there are a few points that I would take issue with (including the reference--inevitable, I suppose, in any article about me in the popular media--to baby selling.) It is critical, and makes me out to be rather an eccentric, but criticism is bracing and praise dangerously relaxing, and since the Economist thinks I'm loony, I am happy to be thought merely eccentric. MacFarquhar also exaggerated my role in the law and economics movement, but that's fine!

19. In January 2004, you will turn 65 years old, thereby qualifying to elect senior status if you wish. What are your thoughts about when you would consider cutting back on your workload at the court, providing you with more time to pursue other interests? Also, in March 2003, The Harvard Crimson mentioned you as among the candidates under consideration to become the next Dean of Harvard Law School. As you know, that job has since gone to someone whom the U.S. Senate did not get around to confirming as a federal appellate judge. Had you been offered the job of Dean of Harvard Law, would you have accepted?

I have no interest in taking senior status. At some point I will run out of steam, but not I think on my sixty-fifth birthday.

I would not enjoy being an academic administrator.

20. If you could add a few more hours to each day, how would you spend them?

I'd like to have more time to read.

"20 Questions" for:

Fifth Circuit Judge Jerry E. Smith

Ninth Circuit Judge Diarmuid F. O'Scannlain

Mississippi Supreme Court Justice Kay B. Cobb

Ninth Circuit Judge Andrew J. Kleinfeld

Ninth Circuit Judge Michael Daly Hawkins

Third Circuit Judge Ruggero J. Aldisert

Eleventh Circuit Judge Gerald Bard Tjoflat

Federal Circuit Judge William Curtis Bryson

Eleventh Circuit Judge Stanley F. Birch, Jr.

Eighth Circuit Judge Richard S. Arnold

Seventh Circuit Judge Richard A. Posner

Tenth Circuit Chief Judge Deanell Reece Tacha

Ninth Circuit Judge Stephen Reinhardt

First Circuit Judge Bruce M. Selya

U.S. District Judge Milton I. Shadur
(N.D. Ill.)

Missouri Supreme Court Judge Richard B. Teitelman

California Court of Appeal Justice William W. Bedsworth (4th Dist., Div. 3)

Tenth Circuit Judge Paul J. Kelly, Jr.

Seventh Circuit Judge Frank H. Easterbrook

Wisconsin Chief Justice Shirley S. Abrahamson

Seventh Circuit Judge Diane S. Sykes

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