Short Take: Posner’s 99 Problems

As a judge comes to the twilight of his career, his robe frayed and a tiny droplet of spittle dripping from the corner of his lips, knowing full well that he will never, but never, make it to the big time, what’s left to do? One thought is to be as outrageous as possible, lobbing hand grenades into the mix and watching people’s heads as they explode.

Hi, Judge Posner.

Posner — the most highly cited legal scholar of the 20th century, according to the Journal of Legal Studies — repeated his complaint that politicians are more concerned with appointing “tokens” such as women or Hispanic justices, and with would-be justices’ politics than they are with merit.

Merit is a hard metric. If you agree with Posner, it’s merit. Then again, Posner has, in his dottage, taken to eschewing precedent and such banal efforts as reason, and just throwing his feelz against the wall to see what sticks. He justifies this by claiming it’s what all judges do, but the rest of them are all liars so they hide it behind fancy words.

“If you had 19 members you would inevitably have more diversity,” he told Prof. Luigi Zingales during the talk. Posner, who was appointed by President Ronald Reagan, said no president since Herbert Hoover has appointed a Supreme Court justice who “was not in either his personal or his political interest.”

Why 19? Why not 545? Okay, that would require a really big room, but then, why not 21? Maybe there wasn’t enough room to pull that number out of his butt?

It isn’t his first complaint about the Supreme Court. In October he said the court had “reached a nadir” and was “awful.”

And earlier this month he said in a conversation published by Slate that there should be “mandatory retirement for all judges at a fixed age, probably 80,” adding that appointment to the Supreme Court should not be limited to lawyers because brilliant businessmen, politicians or teachers could rely on “brilliant law clerks for the legal technicalities” and “most of the technicalities are antiquated crap,” anyway.

Wild stuff, right? It’s not that Posner’s necessarily wrong about any of it, but he’s absurdly simplistic in throwing it out there as he’s doing. Having real complaints about the Supremes, the belief that it’s overly politicized (which has become a progressive mantra since the outrageous Garland fiasco), that it’s the bastion of tokens and laziness, is hardly new. But so what?

As for his “brilliant businessman” notion, I hear some guy named Scaramucci needs a job, and Trump will be available eventually. Judge Posner’s trolling us at the moment, which might not be a bad thing if it moves people to think harder about what’s wrong and why he’s throwing hand grenades at a time when the structure of government appears to be coming apart at the seams.

Should anyone be taking Posner seriously? You bet. The chief judge ought to be paying attention, and asking himself whether it’s time to have the talk with him. After all, Posner will have tons of time, oodles of it, to throw grenades once he’s hung up his robe and embarked on his next career as crazy ex-judge.

10 thoughts on “Short Take: Posner’s 99 Problems

  1. PseudonymousKid

    Dear Papa,

    Everyone lies to justify their feels. Some are better at hiding it than others. Can you get a faint whiff of pessimism or is it overwhelming?

    You say what Judge Posner is saying isn’t new and is absurdly simplistic. He’s in the position, though, to say these things and make them stick. More so than some kid or old cdl could. There’s immense value in this sort of dissent.

    Here’s simplistic. Cut out the rot before trying to heal. Decades of decay have left plenty of work to do. Corruption is everywhere, from the local judge whose 5 kids all work at the courthouse to the type of appointments Posner is maligning.

    Can you please mend fences with Gramps? Maybe just maybe he’ll encourage some critical thinking.

    Yours,
    PK

    1. SHG Post author

      Not everyone, PK. You are quite right to say that Posner, by dint of his status, will be taken far more seriously than some kid or old cdl. But will the upshot of gramp’s schtick be critical thinking or confirmation bias by those whom Oscar Wilde called “cynics”? Remember, the alternative to bad isn’t necessarily good. It can always get worse.

  2. B. McLeod

    In his case, they are likely all bottles of beer on the wall. He does not have much to complain of.

  3. Richard Kopf

    SHG,

    I have an empirical question that I ask for a friend: How much is a “tiny droplet of spittle?”

    All the best.

    RGK

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