Tuesday, June 16, 2015

A Judge's Judge

By Eric Segall

The 27th floor view of the sun glistening off Lake Michigan is simply stunning. In front of shelves lined with over forty of his own books, Judge Richard Posner shakes my hand warmly. I am in Chicago for the week to visit with the most influential legal scholar of the last fast fifty years who also happens to sit on the United States Court of Appeals for the Seventh Circuit.

Over the next five days, we will have numerous private conversations, I will see him interact with his three law clerks, watch him ask questions from the bench in a high profile religious freedom case, and listen in as he participates in a video conference with a number of state and federal judges. Much has been said and will be said about the most important judge in America not on the Supreme Court, but the most accurate is this: he keeps it real.

I came to know Judge Posner five years ago when I sent him a draft essay. Never having met him, I introduced myself in the email and hoped for the best. Just a few hours later, I received the thirty page essay back with friendly but sharp critique and a few questions he invited me to answer. I was a bit shocked he paid such close attention to my work.

After that initial exchange, he read a draft of my book, and we have now twice collaborated on published projects. I am proud to call him my friend.

The first thing I noticed last week about how he runs his chambers is that his law clerks call him by his first name (“Dick”), and dress casually in jeans and khakis when they are not in the courtroom. He explains that he doesn’t see the point of formalities either in dress or title, and that research shows businesses get more out of their employees when they are on a first name basis with their supervisors. I don’t have the data to back it up but I would be shocked if more than a dozen federal judges in the country allow their clerks to call them by their first names.

This rejection of formalism for formalism’s sake is a hallmark of his judging as well. During meetings with his law clerks on Tuesday, prior to nine oral arguments over two days, Judge Posner demonstrated more concern about facts, evidence, and context than cold legal rules. He wanted to know what was in the record and what was not in the record. Both the judge and his clerks often search the internet for information that may shed light on the problems they have to resolve.

Some lawyers and judges criticize Posner for going outside the four corners of the appellate case record.  He once had his clerks perform an actual experiment in a case involving how fast special work clothes could be taken off and on by timing how fast they could perform that feat. This out-of-court search for the facts led his friend Judge Wood to file a strong dissent criticizing Posner’s experiment, but he believes that prior judgments and untested intuitions play a prominent role in how judges decide cases, so why not bring those assumptions out into the open and test intuitions against actual data and experience? Posner simply refuses to be limited to applying sterile legal analysis to real world questions. Unlike many other judges, he also wants to know as much as possible about the actual likely consequences of his decisions.

I clerked for two different federal judges, both of whom were much more formal in style and substance than Judge Posner, so his relationship with his clerks impressed me. He pushed them to test his theories and challenge his intuitions. More remarkably, after Posner collects insights in these meetings with his clerks, Judge Posner himself writes the first drafts of the opinions which his clerks then edit and cite check. A highly unusual practice in today’s world, but one that may explain why Judge Posner tries and often succeeds in getting out his opinions within four to six weeks of the oral argument, a much faster turnaround compared to most other judges. His clean and succinct writing style also helps.

Posner also demonstrated his focus on the real world on Wednesday when he served on a three-judge panel hearing Wheaton College argue that it should not be forced to complete a government form claiming an exemption from Obamacare’s requirement that non-church employers must provide two birth control pills Wheaton believes lead to medically-induced abortions. The case is full of legal doctrine and fine statutory distinctions but from the bench Judge Posner also wanted to know why Wheaton College didn’t just identify itself as a church, which would exempt it completely from the regulations requiring the filing of the form. The lawyer for the college, who otherwise did a fine job, didn’t know the answer. Judge Posner also wanted to discuss what science backed Wheaton’s claims that the bills were abortifacients but he didn’t get any satisfaction.

Also on Wednesday, I watched Judge Posner participate in a virtual discussion with a number of state and federal judges who were interested in an article he had co-written on the administrative mechanics of running a judge’s office. When Posner expressed his frank opinion that federal trial judges should have more law clerks than federal appellate judges who should have more law clerks than Supreme Court Justices (the exact opposite of what is actually the case) because trial judges have by far the busiest caseloads, a Texas Supreme Court Justice expressed clear surprise by the suggestion, perhaps thinking that higher status should lead to more assistance. Judge Posner’s response demonstrated that he is not about status.

During the week, Judge Posner also had to conduct some business in a civil trial he was presiding over. Court of appeals judges are allowed to sit as trial judges and Posner has done so many times because he believes appellate judges should have a good understanding of how trial judges operate. This practice also reflects his desire to understand more fully the actual context of his decisions. He even recently presided over a criminal case.

The Judge and I had many private conversations over the week covering both personal and professional issues. Another aspect of his personality that came out clearly was that, unlike many judges and academics, especially the most prominent, he is more than willing to change his mind if presented with new facts. Once one of our strongest national advocates for free markets, one of his more recent books is titled “A Failure of Capitalism.” He told me that he has modified his anti-regulatory stance a bit when thinking about the causes of the 2008 market collapse. He also once decided that voter ID laws were constitutional, but later publicly said that he may have been mistaken. He was criticized by many for sharing this possible change of heart but what is wrong with government officials admitting they might have made a mistake? His most recent decision on the issue went the other way.

My week with Judge Posner confirmed what I have long thought--he approaches all topics, legal and economic, with serious skepticism and seeks out real information before reaching conclusions. To his critics, who claim he ignores legal rules and prior cases when reaching decisions, let me assure them that he knows the rules as well as any judge but will rely on them only when logically necessary and the consequences require it. He also loves to chide legal scholars for teaching their students that law is mostly about rules and cases instead of facts and consequences. That criticism should be taken seriously.

Judge Posner is also often accused by his critics of writing books on non-legal subjects (sex, national security, and literature among others), that they claim he knows little about. I can assure them that he is an intellectually curious person and thus digs deeply into these projects. No doubt he pushes the envelope at times, but his desire to learn about fields far afield from law and which affect us in non-legal ways should be applauded. Despite teaching in an Ivory Tower (the University of Chicago) for much of his career, he despises grand theory and abstract legal analysis. It is those qualities, along with his warmth and good humor (until a lawyer makes a silly argument), that make him a judge’s judge.


Shag from Brookline said...

I'd say that those qualities - and especially his good humor - make him a lawyer's judge as well.

Samuel Rickless said...

There is a great deal to admire about Judge Posner. His openness to facts and arguments. His willingness to consider the consequences of judgments. His intellectual fearlessness. His fierce opposition to sophistry. And so on. But I don't want him to be a judge's judge (or a lawyer's judge). I want him to be a judge who gets it right. And his consequentialist take on the law has been a real downer, and I am hoping that, as he gains in maturity and wisdom, he will see that the singleminded focus on "facts and consequences" that he championed earlier in his career (and perhaps now too) is detrimental to the practice of judging. Rights (to liberty, to due process, to equality, to privacy, and so on) are not consistent with consequentialism (not even a consequentialism of rights, not even to rule-consequentialism). The very function and purpose of rights is to serve as barriers that stand in the way of maximizing the good. If you tell me that Judge Posner has repudiated consequentialism, then that will tell me that he really and truly "gets it". But it looks like he's still pushing the consequentialist line. It's true that in many cases consequentialism gets it right. But that is often something of an accident. The right result is achieved for the wrong reasons. And that is the wrong approach, whether to law or to morals.

Judge Posner is at his greatest when he searches for the logical fallacies and absurdities in legal arguments. A good example of this is his no-nonsense opinion in Baskin v. Bogan (on same-sex marriage), skewering the reasons offered in support of same-sex marriage bans. But even in that opinion, we have his trademark attempt to reduce matters to costs and benefits. For example, when analyzing the issue of over-and under-inclusiveness, usually taken to be relevant to the issue of whether a policy is narrowly tailored to achieving some government objective, Judge Posner writes this:

"in a same-sex marriage case the issue is not whether heterosexual marriage is a socially beneficial institution but whether the benefits to the state from discriminating against same-sex couples clearly outweigh the harms that this discrimination imposes."

With all due respect, this is not the issue. The issue is whether the gains from discriminating against same-sex couples are so great that they would overcome the state's duty to ensure equal protection of the laws. If you think in terms of cost-benefit analysis, then the principle of equality no longer functions as a serious constraint on government policy, any more than X's right not to be killed stands in the way of killing X to save five others.

Judge Posner appears to think that the issue is merely "semantic". But it's not. It's a matter of substituting consequentialist for deontological reasoning, a substitution that (to use Judge Posner's favorite language) has potentially far-reaching consequences in legal adjudication.