« Enron & ITT Tech | Main | JOTWELL: Thornburg on Gilles on class actions and low-income litigants »

Friday, September 09, 2016

A Take on Domnarski's Posner Bio

The really quick take is that I largely agree with Peter Conti-Brown's review. But perhaps a little more content than that is okay.   

Like many ardent fans and sometime critics of Richard Posner, I was very excited by and had huge hopes for Richard Domnarski's Posner biography, which is now available. And I was equally dismayed when the physical book arrived on my doorstep. Quantity is not quality, God knows. But the book on first appearance struck me as very thin for a life that is packed with such intellectual ferment and set in such interesting times. A doorstop is not a classic by virtue of being big, but some subjects require more than a pamphlet. The structure of the book, on which more below, struck me as exacerbating the problems caused by the book's brevity. And the index is incredibly, and surprisingly, inadequate, both too small and too arbitrary. One may be somewhat charitable toward the author about this, at least if one has ever prepared one's own index. But the fact remains that someone--the author or the press, or both--released an academic biography into the world more or less lacking what I consider an obvious and necessary appurtenance.

I warmed up to the book considerably on reading it, in many respects. And, more or less like Conti-Brown, I think the best part of the book is its first two chapters--not incidentally its most traditionally biographical chapters. Posner's writing is unusually available and accessible. Of course a description and assessment of it must form much of the meat of the book. But learning about Posner the man, or about the interaction between the man and his work or the man and his times, would be something relatively new, Larissa MacFarquhar's New Yorker profile aside. And Posner gave Domnarski access to his archive and especially his correspondence, which provides many of the most interesting, human, and seemingly revealing moments in the book. More--much more--of that would have been great, but Domnarski makes very good use of it.

Especially good, perhaps, is the introduction and its weaving of themes that pop up (but could have been even better developed) throughout the book. His observation (on page 8) about Posner forcing lawyers out of their advocacy role in oral argument and thus leaving the client "suddenly without a lawyer" and giving Posner "an open field" is interesting. So is his general comment on the same page: "Looming over our look at Posner's unfolding careers as an academic, judge, and public intellectual is the fact that Posner has never thought of himself as a good fit for the law. He has described himself in an interview as not being fully socialized into the law." Of course I view these qualities as virtues, for Posner at least, and they are not news, but Domnarski uses them well in examining Posner's life and work. Generally, the interviews Domnarski conducted and the correspondence he uses provide some of the most interesting (and gossipy), if briefly used, connective tissue. And, because he is unconstrained by the structure that makes up the last two-thirds of the books, he can range more freely and insightfully in the first third into Posner's early life and professional career up to his appointment to the bench. 

After that, for the most part, an "If it's Tuesday, this must be Belgium" spirit of list-making takes over. Domnarski opens the book by writing, "If anything, [Posner] seemed destined for a literary life. The core of his life as it has unfolded has been such a literary life, even within a career in the law, so that he has always been a writer first and a lawyer second." A literary biography that proceeded purely by list-making and precis ("In late 1940, Auden wrote 'September 1, 1939.' It was about the war. In early 1941, Auden wrote...."), without either digging deeper into the most important works or analyzing them through the writer or his times in a serious way, would be the wrong approach to a writer's life. The structure Domnarski adopts for the biography, with its repeated categories and bite-sized treatments, is too close to that kind of approach, and imposes a harmful stricture on the book. Reading a two or three page summary in every chapter that lists Posner opinions taken up by the Supreme Court, with short summaries and a count of Posner's "success" or failure on review, is not a major contribution, and the repetitive nature of such such sections grows tedious. Given Posner's own skepticism toward judicial biography and at least occasional fondness for data-mining and influence assessments as substitutes for biography, one can see why Domnarski might feel caught betwixt and between in his structural choices. But Posner is first and foremost a writer, not a judge, and Domnarski should have ignored any such preferences on Posner's part. Perhaps he did, and chose the structure independently; if so, he chose wrong. I would add, Posner-style, that many of the things that Domnarski does of this sort in the book could have been relegated more efficiently to appendices, where the approach could have been more unapologetically data-driven and the narrative of the book left to develop more fully.

This is not to say there are not many good moments in last two thirds of the book. There are; if my patience flagged after the first two chapters, it didn't run out. But these promising shoots are mostly strangled by the surrounding structure instead of flourishing. And, as Conti-Brown notes quite aptly, just as the book does too little with the life of Posner, it also does too little with his times. One might argue about whether Posner's life really demands a "literary" biography, but one can't argue that, if he is to be treated as a judge and academic who engaged highly with his culture and the politics of his times, then a judicial biography of Posner must treat those issues more deeply. Not because the intramural academic fights and their relations to the times are fun and gossipy--although, hell yes, that too--but because they are relevant and revealing and place Posner and his influence in a more meaningful context.  

A last point: The key for Domnarski's book, at least in his thinking about the biography itself, shouldn't have been Posner's Cardozo study, but his 1995 book Aging and Old Age. It is not Posner's most famous book or the key to unlocking his life's work. For me, that would be the 90s trilogy of jurisprudential books, although a combination of his Economic Analysis of Law and Sex and Reason would do nicely too. But a biography of Posner appearing at this date (Posner is 77) must be, in some measure, an assessment of Posner in the winter of his years. That's especially true because, despite Domnarski's efforts to paint Posner as unchanging (albeit unchanging in his combativeness and contrarian sensibilities), Posner has been especially disputatious of late, the disputes have been especially public, and some of his quotes about the disputatious issues have been especially casual. Depending on one's perspective, it is at least reasonable to speculate about some changes in his positions, manner, approach, or concern for systemic constraints and consequences, for himself or others.

Of course Domnarski mentions this, but briefly and rather dismissively. Posner is "getting older," he notes, but "there's little direct evidence of his age having an effect" on him. And he quotes Posner saying, in a 2014 interview, "As long as my physical health holds up and senility holds off, I will continue to work as I have. I am one of those people who dread retirement. I hope I won't overstay my welcome."

That's not enough. Old age, Posner writes in his book, and the words are still true, is a subject that "carries a heavy emotional charge. . . . It is not so taboo a subject as sex [is that still true? I'm not so sure], but considerable reticence, embarrassment, and denial surrounds the public discussion of many aspects of it." The taboo should be broken, in this book of all places. To be clear, not every suggestion that a famous person of advanced years has changed, or declined, or gotten more careless in certain respects, is tantamount to a loose accusation of "senility," which in any event should not have been Posner's benchmark. Indeed, as Posner argues in the book, "A refusal to acknowledge normal, and in particular normal cognitive, aging can create exaggerated doubt about the competence of old people," by pretending there is nothing, no change or slowing in function, between total vitality and utter senility. Posner argues that federal judges show fewer signs of decline with age, for various reasons, including the nature of the job and the staff structure that has grown around them. But he also argues that the aged are on average "worse listeners and less considerate speakers than young people," "invest less in the creation of human capital and therefore have less to gain from receiving inputs of information from other people," and "have less incentive to conceal egocentrism and to engage in cooperative rather than self-aggrandizing conversation." Are Posner's recent public statements, and even some of his recent written work, so very far from those words? Are the constraints on aging effects he mentions as relevant to a judge's extrajudicial statements--or even to his judicial writing, insofar as it is not hemmed in by a clerk-driven model of judicial work?

But these kinds of questions are still largely verboten. One might expect people to be more willing to ask these questions of Posner, given the number of antagonists he has encountered over the years. But two factors, at least, inhibit them. One is that his recent animadversions have involved statements and views, on things like same-sex marriage and the failings of the late Justice Scalia or the Roberts Court, that are catnip to liberal legal academics. These individuals form the vast majority of the legal academy, which is not especially distinguished by candor or disinterestedness. And another is that most of us are well aware that Posner still has us licked in terms of smarts and productivity. (A 75-year-old with a history of "extraordinary capabilities" may still be far "capable than a mediocre 30-years-old," he writes. That observation hits home well enough.)  

And there is a third factor restraining people from asking these obvious questions, which is that Posner is a famous and much-admired judge. Law professors have long said they are all Legal Realists now, but most are, at best, a sludgy mix of Realists, courtiers, high priests, and client-less appellate lawyers. It is striking that Justice Ruth Bader Ginsburg's extrajudicial statements about the election this summer were examined from many angles--but rarely if ever from the obvious one of asking whether they signaled a decline in reasoning function or, more plausibly and charitably, an age-related decline in prudence and judgment or an indifference to institutional considerations from someone who will not be around long enough to care much about systemic consequences. Asking the obvious questions--whether about Ginsburg or Posner, and whatever the ultimate answers--would not have hurt anything other than their feelings. Those are not serious academic concerns anyway--especially for academics, who love to boast of "speaking truth to power." Does anyone doubt that judges--even the ones we like--have power?

My point is not accusatory. It's true that I have been disappointed by some of Posner's recent output, relative to my all-time favorites among his writings. But if this is decline, then, to paraphrase the lady at the diner, "I'll have what he's having." Still, a pre-posthumous biography of Posner is necessarily going to be heavily concerned with his declining years, especially given that they have been so crowded with public incident. Asking more about whether and how he has aged should be a natural part of the book. It would have contributed to a sense of Domnarski having produced a life of Posner, not just an inventory. And it would have been a proper tribute to Posner, as well as a sound biographical move, to ask those questions more forcefully and forthrightly.     



Posted by Paul Horwitz on September 9, 2016 at 08:28 AM in Paul Horwitz | Permalink


The comments to this entry are closed.