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Tuesday, May 31, 2005

The Next Supreme Court Nominee

Over at Debate Club, they've been wondering if any nominees could command unanimous support.  No agreement so far.  Volokh conspirators have chipped in helpfully, first suggesting John Roberts, but then realizing that he would likely face strong Democratic opposition.  Meanwhile, Talkleft thinks that Ted Olson is likely to be the next candidate.

All this speculation leads me to a point that I've argued before (and that I've seen others argue before as well):

The best possible candidate for the next Supreme Court opening (assuming that it's a Bush appointment) is Richard Posner.

Let's start by suggesting that the best candidate is one who will be widely accepted.  Bush may (or may not) have the political capital to force through a controversial candidate.  But it is probably best for everyone if he goes with a less controversial candidate, one who is (to use a phrase mentioned at Debate Club) "approved by conservatives, lauded by moderates, and acceptable to liberals." 

In addition to meeting those political requirements, a strong candidate omust be one who fares well in the measurements that will be used in evaluating nominees.  These will include a judge's intelligence, understanding of law, prudence, ability to work with other judges, independence, and willingness to subordinate individual preferences to the rule of law. 

Judge Posner is examplary in nearly every category.  He is recognized as one of the greatest legal minds of his generation.  He has been instrumental in the widespread use of economic principles in legal scholarship and in court decisions.  He has also written extensively about jurisprudence and about substantive law in dozens of areas ranging from employment law to antitrust to torts, and everything in between.

Judge Posner's independence from any political thrall is unquestioned.  There is no doubt that he calls the cases as he sees them.  One may disagree with individual judgments -- I often disagree with his conclusions -- but his opinions are always articulate and well-reasoned.  And on the critical question of "will this judge simply vote along party lines?", the answer is a resounding "no."  Whatever one says about Judge Posner, he cannot be accused of simply voting a straight Republican ticket. 

On the one hand, Judge Posner's jurisprudence and scholarship is often quite conservative in tone.  He has argued that Title VII is inefficient; he has defended monopolies and criticized anti-monopoly laws; he has roundly critiqued former President Clinton for dishonesty.  He regularly speaks in venues like the American Enterprise Institute. 

However, Posner's conservatism has always included a healthy dose of independence.  He refused to join the textualist-originalist ranks in the field of interpretation, instead offering an influential "tank commander cut off from radio communication" model that affords broad independence to judges.  He has argued, with the left, against intellectual property restrictions like the DMCA. 

Posner's independence is evident from his blogosphere presence as well.  Posner blogs with "Nobel"-winning economist Gary Becker, and has also blogged with Larry Lessig and with Brian Leiter.  If that's not a broad coalition, the term has no meaning.

Posner's scholarship is extensive, and he does not avoid controversial topics.  This  means that everyone can find something in his scholarship with which to disagree.  I often find myself in disagreement with Posner's conclusions.  But his conclusions are never sloppy or ill-thought, and never seem dishonest.  He says what's on his mind, after thinking it through.  And he typically says it well. 

There are three potential bumps in the road for a Posner nomination:  age, liberals, and conservatives.

Age may come into play.  Judge Posner is not a young man.  However, he is still, by all reports, sharp as a tack.  I don't see age stopping a Posner nomination.  (It may factor in, however, since conservatives will see a Posner nomination as providing less bang for the buck -- they will want to get 20 or 25 years out of this nomination, and Posner may, realistically, be more in the 10-15 year category). 

Liberal opposition may materialize.  And let's be frank:  Because Judge Posner has written a lot of things, it will be easy to find something to use against him.  The infamous baby-selling article, for instance, is likely to come up. 

But will liberal opposition keep Posner off the Court?  Probably not. 

First, Posner is likely to be overwhelmingly supported (as McConnell was) by his fellow legal academics.  Will Democrats really stand in the way of a Posner nomination when Posner's colleague (and politically connected liberal law professor) Cass Sunstein can, on the drop of a hat, produce a letter signed by hundreds of legal academics of all political stripes, supporting a Posner nomination?  Not likely.

Second, Democrats know that Bush has a dozen hatchet men who he could nominate, and a Posner nomination is decidedly not a hatchet man nomination.  Yes, he'll often vote with the court's conservatives.  But he'll also break from them on some important issues.  He'll likely become a key moderate-conservative vote on the court.  That's not such a bad outcome for Democrats.

For precisely that reason, conservatives may oppose the nomination.  The interest groups on the right don't want a moderate-conservative, they want a yes-man who will rubber-stamp their agenda.  And they may feel that, with Republicans in power, they deserve such a nominee.

However, I don't know that they'll be able to stop a Posner nomination, either.  First, Bush and Rove have a pretty good control on party machinery (much better than the Democrats have) and can exert muscle to bring wayward elements into line.

Second, Judge Posner brings a lot to the table for conservatives.  With his mind and pen, he will be authoring lots of important opinions, and they will be mostly conservative in tone.  He will frame issues in important ways.  Conservatives could do a lot worse than putting one of the premier theorist judges of our time onto the Supreme Court and letting him write careful, lucid, well-reasoned opinions that will still be cited 100 years from now.  He could become the conservative Brandeis, who was important as Court participant but equally (perhaps more) important for the concepts that he trumpeted from the platform of the Court. 

And of course, Bush has a key weapon with which to beat any reluctant groups into submission -- the truth.  "This is the greatest jurist of our time," he can say.  "How can you oppose him?  Such opposition could only be based on crass politics."

And he'll be right.

A Posner nomination would give Bush indelible proof that his nominations are not about politics, but about appointing the best person for the job.  Law school faculties and the judciary would support the nomination overwhelmingly -- how could they not?  And Bush would gain vast political capital as Posner sailed through the confirmation process.  It's the choice of a uniter, not a divider, and it would go a long way towards rehabilitating Bush's once-important image as a moderate, "compassionate conservative."

Perhaps it's not a political reality.  Very few of the media's "short lists" (such as this one) even mention Posner.  If he's not on Bush's short list -- at the top of it -- it would be a shame.  Judge Posner is clearly the right man for the next Supreme Court nomination. 

Update from Dan Markel: Welcome Instapundit readers.  PrawfsBlawg has been up and running for about two months now, and it's a forum where legal academics (both current and rising) discuss law and life.  Some other recent posts you might enjoy while you're here include: reflections on leaving legal practice; pictures and thoughts on HinJew weddings; the comedy of the new Blue Book; this post on what Star Wars can teach legal theorists; this post on Israeli tourism and the evacuation from Gaza; and these posts on why the Bar Exam should be abolished.  Since we're still new, please bookmark us and if you like our 'zine, tell your friends about us.  Welcome again to PrawfsBlawg (home of raw law prof blogging).

Posted by Kaimi Wenger on May 31, 2005 at 02:30 PM in Kaimi Wenger, Law and Politics | Permalink

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Listed below are links to weblogs that reference The Next Supreme Court Nominee:

» Posner for Judge from Hatful of Hollow
Here come the judge... Here come the judge... Probably not, but I can dream.... [Read More]

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» Justice Posner? from Pennywit.Com
Well, here's a name I haven't seen for a while: Richard Posner, as the next Supreme Court nominee. Why? Kaimi Wenger of PrawfsBlawg summarizes: Judge Posner is examplary in nearly every category. He is recognized as one of the greatest legal minds of [Read More]

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» Good Choices for the Supreme Court from Caerdroia
It is likely that there will be three - and there may be as many as four - Supreme Court vacancies during the Bush presidency. ProfsBlawg suggests Richard Posner, an able jurist, a clear thinker, and probably widely acceptable (to the extent, anyway, t... [Read More]

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» LAW: Maybe Later from Baseball Crank
Instapundit links to a Profslawblog post arguing for Seventh Circuit judge Richard Posner as a Supreme Court appointment. Certainly, Judge Posner is the most qualified man for the job on credentials and intellectual accomplishment alone, moreso even th... [Read More]

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» The Pathology of Picking Supreme Court Justices from Concurring Opinions
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» Justice Posner? Perish the Thought! from ProfessorBainbridge.com
A colleague of mine asked me yesterday what I thought of Judge Richard Posner as a compromise Supreme Court candidate. To which I responded, what compromise. It'd be a clear win for the left, at least insofar as the culture [Read More]

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Comments

NOOOOOOO!!! NO! NO! NO! NO! NO! NO! NO! NO! NO! NO! NO! NO! NO!!!

Have you read his blog lately? The simplistic, half-thought-out knee-jerk twaddle (that apparently passes for "pragmatism" in the legal academy, obviously as opposed to "analysis") present there is a scary insight into his thought processes generally.

Posted by: Paul Gowder | May 31, 2005 2:32:14 PM

For example, Read this post by Posner on his blog. That's the one where he tries to commodify sex. Yes, I'm serious. He really tries to teach a biological urge rooted in thousands of years of evolution, hormones, massive cultural influences, etc. as a cost-benefit analysis. Here's one quote:

"Let us consider first why sexual morality has changed so much over the past half century. If one takes an economic approach to the question, then since the benefits of sex in the sense of the pleasure or relief of tension that it yields have deep biological roots, it is probably to the cost side that we should look for an answer. The costs of engaging in sexual activity have fallen dramatically over the last half century (AIDS notwithstanding), for many reasons."

AIDS notwithstanding! Talk about the notwithstanding tail wagging the cost-lowering dog!

Plus his reasoning there is just DUMB. Morality is itself a cost to the proscribed activities. Moral condemnation should INCREASE as the other costs of a proscribed activity goes down, not decrease.

Anyway, my point is that if Posner really thinks like this... this is about as shallow as you can possibly get without hitting your head on the bottom when you dive in.

Posted by: Paul Gowder | May 31, 2005 2:41:22 PM

Paul,

I'll agree that his blog posts aren't always great -- I think that, like many old-school academics, he hasn't quite found the right tone for the new medium. And I can appreciate your distaste for an economic analysis of sex.

But on the analysis (which is relatively short, and descriptive rather than normative), I don't find much to disagree with Posner. He suggests that the costs of having sex are less now than they were fifty or a hundred years ago, primarily because of birth control and abortion, along with better medical technology. I can't claim enough knowledge of the empirical side to be able to agree or disagree substantively, but that sounds like a pretty plausible assertion.

And of course, for some people, the entire project of turning cost-benefit analysis to subjects like sexual morality is misguided and distasteful. I understand that sentiment, and it is, of course, one reason why there will always be some opposition to Posner.

But I continue to think that, among prominent conservative possibilities, he is far-and-away the best.

He sometimes uses economics in a normative way, but often (like the sex post you cite) he simply uses economics in a descriptive way to try to analyze an issue. That process is a little unsettling for non-utilitarians. But it's an understandable process. He's basically saying "what does economics tell us about how patterns of sexual activity might be changing?" I may not think that economics is a particularly effective tool for talking about sex, but I agree with Posner that it is often an effective way to look at the forces underlying various social interactions -- it's an interesting gloss on Holmes's bad man theory of law.

Not always my cup of tea -- there are decisions of his that I really, really disliked -- but nonetheless often an intelligent and useful way to look at legal questions.

Posted by: Kaimi | May 31, 2005 3:06:21 PM

The conservatives will appoint a hatchet man. Anyone who thinks otherwise doesn't have a strong grasp on political reality.

Posted by: Jeff V. | May 31, 2005 3:11:16 PM

I have a bigger problem with jurists who claim to follow in Posner's footsteps but cannot get th elimitations of a law&economics analysis through their head. Posner has recognized the inherant limitations of the theoretical style, chiefly that humans are not all rational maximizers and that deviations from that curve are plottable instead of regressive. In short, the L&E rational maximizer is great on a micro level of an individual, but it does not hold up to the more recent psychological studies of risk and decision making in groups.
Posner might be the best choice for the current administration to make, but I think the strikes against him will be enough to even get him nominated. Between the age and the willingness to be reasonable and work with people like Lessig, I don't think he will make the debate floor. But, perhaps my cynicism is maturing early.

Posted by: Joel | May 31, 2005 3:19:19 PM

I think that the names bandied about in the Debate Club are pure wishful thinking by liberals (apparently).

I think that Posner, Roberts, and McConnell are excellent choices. None of these three are hatchetpersons. Each is an incisive scholar and person of integrity. The fact that I don't agree with their general worldviews, interpretive methodologies, or specific decisions is hardly the standard.

Posted by: hillel levin | May 31, 2005 3:42:40 PM

Re: the "baby selling" article -- Posner has noted that his article didn't actually say that people generally should be able to sell babies. In his words: 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.

Posted by: Stuart Buck | May 31, 2005 4:16:58 PM

Kami: My main gripe with Posner (aside from the political one) is his inability to consider any other tools. Sure, he usefully points out places where economic analysis might shed some light on various questions. Unfortunately, things like the sex post suggest that he's really a one-chord guitarist: he can't see where economic analysis is plainly inappropriate and apply some other analytical tool.

Posted by: Paul Gowder | May 31, 2005 6:43:19 PM

Three Jews on the Court at once? It'd never happen.

Posted by: Eric Muller | May 31, 2005 11:04:58 PM

One thing can be said for Posner: he's encouraging to his critics. He half-invited the world to make an Anti-Becker-Posner-Blog.

Someone did.

Posted by: The Crit Cowboy | Jun 1, 2005 12:04:54 PM

Give me a break -- there is ZERO chance that Bush would nominate Posner. None. Zilch. I think I am going to write an article about how Bush should nominate Reinhardt -- that's about as likely. Bush wants a hatchetman, and short of that, a proven real conservative like McConnell.

Posted by: Joke | Jun 1, 2005 11:06:13 PM

Paul -- In his academic writings, he does try to see how far he can go in applying economic analysis. But, in his decisions, he seems very balanced. That said, anyone who thinks that the administration is going to nominate someone other than an extreme social conservative is deluding themselves.

[I say this as a pseudo-libertarian who has moved away from the Republican party as it has become the party of big, personally intrusive government.]

Posted by: Dan | Jun 1, 2005 11:37:52 PM

Posner might have a chance if he knew Bush personally. I don't think he does.

Bush's track record is one of appointing people he knows to prominent positions if he has any choice at all. He will likely be looking for a younger man, and he won't need much prompting from social conservatives to pick a social conservative. But the main thing is that he will want his first SC nomination to be someone he is personally comfortable with.

It's too bad, really, because though I often disagree with Posner he is exactly the kind of man I would like to see on the Court -- widely read outside of the law, able to write with clarity, a more powerful intellect than any Justice since Scalia. But I am not President.

Posted by: Zathras | Jun 1, 2005 11:54:12 PM

Posner? I wish.

If there's one interest group Bush won't cross, it's the right-to-lifers. They alone make his nomination to the SC a complete non-starter.

Posted by: Geek, Esq. | Jun 2, 2005 12:17:28 AM

Wasn't Bork also one of the best legal minds of his time, and an expert anti-trust guy to boot? The Dems sure didn't cut him any slack. Why do you think they would do the same for Posner? They will fight over anyone to the right of Souter, I believe, because they have gone around the bend completely.

Posted by: Jon Ravin | Jun 2, 2005 4:23:46 AM

I think Roberts is much more likely. He's hard enough to oppose, having just been voted in to the DC circuit two years ago. Then they could only find that he once represented a company against disabled plaintiffs!

And he is a superlative lawyer, and he's worked with the previous Bush administration.

And he'll send the social conservatives into rapture (not the end of the world!) and finally, he's young.

The only thing against him is that he is not from a minority (unless you count Catholics, which would be fair, except the MSM and democrats won't)!

Posted by: Patrick | Jun 2, 2005 6:51:32 AM

Do you really think the moderates, conservatives, or liberals would go for Posner?

I like the guy, but he's offended every single constituency out there.

And given Posner's colleague Steven Leavitt's mass media attention, if Posner does anything or has ever mentioned anything by him he'll be booted out by conservatives.

Cass Sunstein and Martha Nussbaum are powerful liberals. Epstein is the biggest libertarian thinker. Friedman and Becker are worshipped. But none of them can save Posner from the masses in the Christian Coalition, NARAL, the Sierra Club, Move On, Focus on the Family, etc.

However, Bush has to appoint a moderate if he wants a Republican to replace him in office. An extremist on the Supreme Court would be perfect campaign fodder.

Posted by: lebanon.profile | Jun 2, 2005 7:24:46 AM

The President has said he will appoint judges (or Justices) like Scalia and Thomas. That means conservatives, which Posner decidedly is not.

You can argue all that you want about who would be more palatable for the left - but this President has won the last two elections and has said specifically that he will appoint conservative judges.

Why would he change his mind and go back on a campaign promise - because people will want to fight him about this? This is very important to conservatives, we welcome a fight about the proper role of the Supreme Court.

Look for Justice Scalia to be elevated and McConnell or Roberts to be nominated to an associate slot - Then for liberals to scream that the sky is falling.

Posted by: MJ | Jun 2, 2005 8:30:05 AM

David Limbaugh would be the consensous choice. If not Limbaugh, Ann Coulter.

Posted by: Adawg | Jun 2, 2005 8:47:23 AM

How about Mark Levin? He'd be a great choice!!!

Bush needs to pick someone who's philosophy is at least 8 lanes to the right of Robert Bork.

Posted by: Adawg | Jun 2, 2005 8:49:27 AM

Strategy: Bush nominates Posner. Dems shoot him down. Bush shrugs, says "I tried to meet you halfway", and nominates whoever his pet Conservative is - McConnell, for example. The Dems would be hard pressed to start serially shooting down nominees to the same spot. Reverse-Bork.

Posted by: rvman | Jun 2, 2005 9:33:30 AM

Dan: it's true, his decisions are less extreme than his writing. With the exception of the Aimster opinion (334 F.3d 643), of course, which is absolutely inexcusable. I quote:

"Even when there are noninfringing uses of an Internet file-sharing service, moreover, if the infringing uses are substantial then to avoid liability as a contributory infringer the provider of the service must show that it would have been disproportionately costly for him to eliminate or at least reduce substantially the infringing uses. Aimster failed to make that showing too, by failing to present evidence that the provision of an encryption capability effective against the service provider itself added important value to the service or saved significant cost. Aimster blinded itself in the hope that by doing so it might come within the rule of the Sony decision."
Id. at 653.

Can you imagine if someome tried to apply this stupid BPL-for-sales rule to other products? Auto manufacturers have affirmative duty to install devices that prevent drivers driving badly (like speed regulators)? The phrase "guns don't kill people, people kill people" is dancing through my head.

Well, that's neither here nor there. I have this fantasy that Bush will nominate Kozinski, so at least we'd have a conservative with a sense of humor on the Court. Alas...

Posted by: Paul Gowder | Jun 2, 2005 9:51:25 AM

Adawg, I think you may have just lost everyone with your Ann Coulter suggestion. Seriously, who would the administration nominate and how would it go?

I agree with a lot of the comments being made. The next nominee must be someone that will appease the constitutencies that feel entitled to running the show. This will effectively be a hatchetman/woman. The one problem with the strategy that rvman puts forth is that the Democrats could draw out the hearings longer then the administrations wants them to go on and make it much harder to get a candidate that won't be a lightning rod through. The inverse strength of the Democrats is that they must carefully weigh that initial nomination and choose where the line of too extreme or too hostile lies.
I would like to see compromise and I would like to see someone of significant intellectual gravitas. I just doubt we will get that for a long time since nuanced jurispridential theory does not lend itself well to one or the other of the major parties.

Posted by: Joel | Jun 2, 2005 9:53:48 AM

how bout that jugde judy? she a mean lil ol bitty biddy. she kick sum ass!

Posted by: bubba | Jun 2, 2005 10:07:08 AM

"One may disagree with individual judgments -- I often disagree with his conclusions -- but his opinions are always articulate and well-reasoned."

And, while I'm not a lawyer, I've seen nothing in any of the "contraversial" decissions of Justices Brown or Rogers to indicate they, too, are not articulate and well-reasoned. Unfortunately, the judiciary had become much more active in their "interpretation" of legislation, to the point that for many it is the conclusion rather than the process that has preeminence. I agree with Justice Scalia, that a major reason for the stark political divide evidenced in judicial appointments today is a direct result of actions of sitting judges shifting the focus of concern to the results of their decissions and not their ability to rationally reach these decissions.

Posted by: submandave | Jun 2, 2005 10:34:11 AM

I think Bush already has his Supreme Court judges picked, and while I would gladly support Posner, I doubt he is among them.

First opening: Ted Olsen.

Second opening: Alberto Gonzales

Third opening: Janice Rogers Brown

That gives him a solicitor general, an attorney general, and (by then) a DC circuit appeals court judge (via the California Supreme Court no less!).

Plus, it gives him a Hispanic and an African-American woman.

So with all due respects to Posner (and Volokh and everyone else who would make a great Justice), sorry--ain't gonna happen.

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