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Sunday, September 03, 2017

How to Mark Judge Posner's Retirement

Howard has already shared the news of Richard Posner's retirement from the bench. I have written several posts about him and published a couple of reviews of his recent books here and elsewhere in the past few years, and although (or because) they seem entirely relevant, I won't link to them here. I will, though, repeat one thing I have said often: Posner was and is easily my favorite contemporary legal writer, whether in his opinions or in his academic and other writings, although I have pointed to what I think are notable and increasing problems with those writings in recent years. Other than where great rock drummers are concerned, I'm not much into fandom (of course such a rule should not apply to a giant like John Bonham!). But I was and am indeed a Posner fan. In particular, I think his books published between 1990 and 2000--especially The Problems of Jurisprudence, Overcoming Law, The Problematics of Moral and Legal Theory, An Affair of State, The Essential Holmes, and Law and Legal Theory in England and America, and Aging and Old Age--marked a tremendous high point in his work. In this post, I want to discuss how to mark Posner's retirement from the bench--and how not to. Fair warning: There is much general hobby-horse riding about the American legal academy and legal profession ahead, although I think it's relevant to the post.  

I have often suggested in my Prawfs posts that there is a kind of extended or eternal adolescence problem in the American legal academy and profession, one marked especially by the clerkship culture and the tendency to speak worshipfully of one's "judge" for decades after one's clerkship has ended. The legal academy and profession tend to reject, at least by outward show but I think inwardly as well, the adage that no man is a hero to his valet. I think this is unhealthy and ultimately bespeaks a deep immaturity in the American legal culture, as well as a certain amount of insecurity and credentialism (a credentialism that takes the form of seeking greatness by association, and thus requires one continually to rekindle the flame at the altar of one's idol, so that one shines in the reflected light).

The NYU Law Review in 1995 published a great symposium issue on judicial biography, including a solid contribution from Posner. The first sentence of the preface to that symposium issue reads, "American law makes giants of its judges." That personification obscures the reality: American lawyers make giants of their judges. It is thus unsurprising that two recurring themes in the NYU symposium are the tendency toward hagiography in American judicial biography, and the tendency to "canonize" various judges, although once they become canonized they may fall out of favor, or the nature of their "greatness" may change in each generation to suit the needs of the time. (Justice Holmes's reputation illustrates both phenomena, since we have celebrated many different versions of Justice Holmes over the decades, and at times he goes out of fashion altogether; his stock seems to be going down right now. It will be interesting to see how our love of celebrating anniversaries, our current disagreements over free speech, and Holmes's fluctuating stock will come together in a year or two as we start celebrating the centennial of his most famous free speech dissents.) 

John Hart Ely famously dedicated his classic book Democracy and Distrust to the judge for whom he clerked, and for whom the book was a kind of apologia, Earl Warren. Ely wrote: "You don't need many heroes if you choose carefully." It is perhaps indicative of our culture--American culture generally, perhaps; certainly American legal and legal academic culture--that the dedication has been quoted at least 26 times in law reviews but has never, so far as I can see, been subjected to any skepticism or questioning. It is as if it our culture treats it as obvious and beyond question that having heroes is a good and desirable thing or, of greater importance, that it has no risks and side effects beyond the obvious and banal risk of choosing the wrong heroes. One might expect at least one article or passage, among the infinitude of words in the law review universe, that is willing to ask the heretical question whether a culture of heroes tends to become a culture of hero worship or idolatry, and whether that might not be an entirely good thing for an adult legal and political culture. There is a sense in which constitutional theory since 1980 has exhibited an odd dual tendency. On the one hand, it endlessly disparages the text of Democracy and Distrust itself. On the other, it endlessly celebrates and emulates its dedication, with the implication that Ely had the right goal--find the right "hero" and invent a constitutional theory that would enshrine his or her opinions--but the wrong specifics. I would venture the opinion that we have been too hard on the book and too easy on the dedication. A surprising amount of American constitutional theory, and American legal scholarship generally, still consists of a series of extended applications of or glosses on Ely's dedication, with the judge one clerked for (or wishes one had clerked for) substituted for Warren's name. One needn't be an absolute iconoclast to harbor some doubts and concerns about this phenomenon. 

These musings are relevant to Posner's retirement because they are similar to what he has often written himself, and thus suggest something about how Posner would, or should, want to be written about on this occasion. I develop that point, and say something about how we should mark his retirement, below. 

To continue: Posner has regularly, even repetitively, castigated the regular use of "the loftiest Law Day rhetoric" by and about judges and law. He has said that "ancestor worship is a besetting sin of the [American?] legal profession." He has written, again repetitively, about his insistence that his clerks call him by his first name, and criticized the tendency of judges to insist that their clerks and others act as judges' acolytes or foot-servants. His latest book devotes a huge amount of space to criticizing various judges and professors for what he sees as breathless and insincere encomia to the late Justice Scalia. Although it may be given a little (or a big) push by the fact that it's Scalia who was the subject of these tributes, Posner has often made the same point more generally. He has little interest in a culture of hero worship. Law reviews routinely devote pages to tributes to departed colleagues, and elite law reviews often publish tributes to Supreme Court justices and occasionally lower federal court judges, especially on their retirement or death. I enjoy reading them, but they are generally awash in cliches and extravagant praise, of the "He remains my idol still" variety.  Sometimes a tribute writer will give a good sense of the subject's personality; many of the tributes to Marvin Chirelstein in the Columbia Law Review were successful at this. But this is rare, and serious evaluation is rarer still. Posner has contributed to some law review tributes, but (with the possible exception of his tribute to Henry Friendly, with whom he finds no fault as man or judge) those contributions, even when they praise the subject, do so as part of an evaluation of larger developments or changes in the legal culture. His tribute to Bernard Meltzer, for example, praises Meltzer but uses that praise to pivot to a discussion of the loss of certain kinds of legal scholars and scholarship as a result of changes in faculty hiring. (I should note by way of confession that I recently wrote a post praising John Manning, a former professor and mentor of mine and the newest dean of Harvard Law School. Although it was full of praise and did not critique Manning's teaching or scholarship, neither was it intended to lionize or exalt him. It had a purpose beyond mere praise. I made clear that one's debts to such mentors are best repaid not by flattering them, but by trying to help others.) 

By far the most famous, or notorious, example of Posner's approach on these occasions is Posner's contribution to the Harvard Law Review's posthumous tribute to his former boss, Justice William Brennan. His tribute to Brennan on the occasion of his retirement in 1990 was laudatory, but Posner took care to note that it was too early to judge the value and consequences of Brennan's "contribution to the Supreme Court, the law, and American life." By the time of Brennan's death in 1997, Posner felt somewhat more comfortable rendering an assessment. His contribution begins:

When a public man dies in his nineties, the maxim de mortuis nihil nisi bonum is suspended, and it is permitted without breach of decorum to mingle affectionate tribute with critical assessment. Justice Brennan was largely free of pettiness and vanity, and so might actually have preferred a form of remembrance in which warm affection was seasoned with an effort at cool evaluation.

That is what Posner's contribution sought to provide. He acknowledged and praised Brennan's warmth and decency as a boss and a person, and "affirm[ed] Brennan's historical importance as a central figure in a judicial revolution." But he argued that Brennan's key contribution to that revolution lay not in some towering intellect but in Brennan's personality and his skill as a "facilitator" on the Court, along with a confluence of circumstances that made it possible for those qualities to have an impact on the Court and its decisions. Brennan's "achievement," Posner wrote, "lay not in the texture of his thought or writing but rather in his influence on the content of the law." As such, he argued, any evaluation of the "enduring quality of his work" must perforce be based on the effects of that work: "the statesman judge [as opposed to the genuinely intellectual judge] must be judged by the criteria of statesmanship, implying close attention to long-term social and political consequences." He raised doubts about those consequences, and said he did "not see how anyone could responsibly pronounce the Warren revolution a largely unqualified success," but did not reach firm conclusions. Posner concluded: "Only when [the Warren Court's] contribution to the nation's well-being has been dispassionately assessed from a perspective longer than is available to us today will it be possible to measure the value of Justice Brennan's contribution to American law." 

I was a student, not a professor, when this tribute-cum-critique was published. I found it striking and admirable, but have no idea how it was received by the legal academy at the time. There is a passing disagreement with it in a 1999 law review article. (That article is titled "Remembering a Constitutional Hero," and was written for a symposium titled "Remembering and Advancing the Constitutional Vision of Justice William J. Brennan, Jr." [emphasis added]. Those titles exemplify both the usual hero-worshipping tendencies of the legal academy and the link between that tendency and the desire to advance the mission and reputation of one's judge. Unsurprisingly, the majority of the authors of that piece are former Brennan clerks.) But the best way to judge the reaction to his piece would not involve law review citations. It would be to have been a fly on the wall of the faculty lounges of the law schools (especially the elite schools) at the time. Given my subsequent experience of such places, I would hazard a guess that the reaction was less than positive: that it would have been viewed as déclassé at best, insulting and outrageous at worst.

But Posner's approach was, and is, the right one. Even if they deserve it, life-tenured federal judges, let alone Supreme Court justices and/or judicial celebrities, do not require flattery, praise, and hero-worship. They have tenure, the robe, the large chambers, the deferential treatment of clerks and marshals and lawyers, and multiple opportunities to be flown to and praised by law schools and ACS or FedSoc dinners (not to mention the financial rewards that increasingly accompany their positions). They have entirely too many uncritical valets. (In person, that is: law professors and others are happy to heap contempt on them behind their back or in print, which is little different given the sheer volume of legal periodical literature, even if they drop all that when in the holy presence.) We should dispense with most of that. It does little positive good, and what good it does may be outweighed by its harm: its distorting effect on what ought to be a more mature and independent and less personality-oriented, worshipful, elite establishment-oriented legal culture.

I venture a modest prediction. Much of the instant and even short- or medium-term reaction to Posner's retirement will consist of exactly the kind of thing he criticized and disdained. With the usual delightful dollop of irony, in paying tribute to Posner the usual suspects--deans, celebrity legal academics, law professors with Twitter feeds, and so on--will praise Posner's influence while displaying little or no evidence of that influence. Some of this will have to do with the limits of Twitter and other social media. (The overheated criticisms of Posner on Twitter--"about time!," "worst judge ever," "lawless," and so on--will likewise demonstrate those limits.) And some of it will have to do with the fact that whatever liberal legal academics used to say about Posner, his recent views and his opinion (mostly a very good opinion, in my view) in Baskin v. Bogan will wash away any former ill-will in a tide of good feelings. But much of it will have to do with the entrenched and conservative nature of the legal (and legal academic) culture, which will happily take on board some of Posner's influence while domesticating it, and certainly will not follow his advice to get rid of a culture of praise and flattery. I happen to think Posner deserves the praise, and certainly can be recognized as the most influential judge and legal academic for several generations. But that will not stop me from simultaneously chuckling over and despairing at the irony.

The best way to mark Judge Posner's retirement, of course, is as he would do so: by evaluating his career and his work. His judicial opinions and academic writing, his advocacy of and contributions to law and economics and legal pragmatism, his methodology, the influence of all of these, their consequences and systemic effects: All of these should be evaluated carefully, critically, candidly, and unsparingly, immersed in the same acid bath of which Posner himself is so fond. To paraphrase Posner's description of Justice Holmes's dissent in Lochner, whether Posner was a good judge and legal scholar or not, he was and is certainly a great one. Greatness, judicial or otherwise, is difficult to imitate or emulate. That is all the more reason both to praise Posner and to ask critically whether his is a sound model for others. And Posner's greatness, along with the sheer quantity of his written output, means there is plenty to criticize and raise doubts about as well as to praise.

One can, of course, offer very simple, brief, routine complimentary statements marking his retirement and mentioning his great influence. That seems appropriate to me. Such understated boilerplate statements may not be useful, but they will be not be harmful or dishonest either. If it is too early to offer a fuller evaluation, one can say nothing, or next to nothing, or hedge one's statement by noting that a proper evaluation of his impact will take time and perspective. One can try to offer a meaningful critical evaluation. But flowery, exaggerated, worshipful praise is not only unnecessary and dangerous; it is the very opposite of a Posnerian response. It is, however, quite typical of American legal and legal academic culture. 


Posted by Paul Horwitz on September 3, 2017 at 12:28 PM in Paul Horwitz | Permalink


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