Adelman and Posner

Josh Blackman has already written twice about federal district court judge Lynn Adelman's article (now up to around 5.800 downloads) criticizing the Roberts Court--or, as Slate puts it in its inimitable way, "go[ing] for broke in criticizing conservative bias in the judiciary." Having now read most of the article, I agree with him in general terms, although I would temper my criticism of Adelman and his article more than Blackman does. (Adelman's defense of the article is another matter. In his own words, it is so terribly weak as to seem like "a masterpiece of disingenuousness.") But what interested me is why my reaction to it was so different from my generally approving reaction to the long and remarkable record of extrajudicial writing by former judge Richard Posner. The Slate piece--which is awful and whose main argument is that anything goes in love and war--also notes Posner's writings in defending Adelman. Why do I think Adelman's article is worthy of condemnation, while wishing that Posner had written even more (if that were possible) in his extrajudicial prime?

I think the answer comes down to the difference between genius and banality, between true independence of mind and something less than that. In criticizing another judge for extrajudicial statements a few years ago, I wrote, "If she had had something novel to say, I would be more charitable[,] but she doesn't." In our imperfect world, genius is rare. Even short of genius, there is always a deficit of genuinely interesting and independent thought. It is still rarer in the political world, but it is still in short supply even in the academic world, let alone the legal academic world. It's hard to achieve and there's not much of a market for it. For more or less intellectual reasons, along with an admiration for those who can skillfully and successfully administer therapeutic shocks and offer useful provocations, I am willing to forgive much for the sake of genius and for one who follows an intellectual and humanistic muse wherever it leads.

Take him for all in all, I would say Posner qualified for that kind of leeway. I am well aware of the decades of excellent and often on-target criticism of Posner's work. I sometimes disagreed publicly with him myself, and more so in his later years, when I think there was a falling-off in intellectual return on value. I nevertheless happily stand by my general description of his writing: "confident, candid, acidic, impatient with the pieties that abound in American law."

He had no truck what he called "Law Day talk." But he found it everywhere, and said so. He agreed with Adelman that Chief Justice Roberts's "balls and strikes" language at his confirmation hearing was silly and probably disingenuous. (He would not have called it "a masterpiece of disingenuousness." He would have asked the obvious question: What makes it a "masterpiece," and not commonplace? He would have rejected the cliche.) But he would not have stopped with--he did not stop with--directing that point at Roberts alone or reducing it to a personal accusation. He related it to a "legalist theory of adjudication" that judges "believe (or pretend to believe)" in. He wrote that Roberts's statement was "so ridiculous, and Chief Justice Roberts is so sophisticated, that it cannot be what he actually thought." But he saw it as a general problem, a symptom of a general jurisprudential perspective that has deep roots in American law. He criticized it wherever he saw it, and didn't stop at some party line. He also understood, as we all do, that this kind of statement is par for the course in our demand for a particular kind of edifying theater in the legal and political world. He knew that "judicial confirmation hearings have become a farce in which a display of candor would be suicide" and would, perhaps worse still, be a kind of "category mistake," a departure from the expected script. Posner--unlike Adelman--noted that Roberts's statement "was echoed four years later by Sonia Sotomayor at her confirmation hearing."

This is a trivial example and not his best. An Affair of State, Problematics, Overcoming Law, The Problems of Jurisprudence: these are masterpieces. They may be wrong; they are surely subject to criticism; but they're interesting, provocative, witty, and humane. Like what Posner said about Roberts (and Sotomayor, and "legalism," and confirmation hearing rituals), they give off a sense of independence, engagement, candor, and personal and intellectual liveliness; a willingness to criticize friends and foes alike if the criticism is warranted; and a sense that if the criticism were only personal or political, and not connected to an interest in our legal, political, jurisprudential, and intellectual world as a whole, it would hardly be worth making.

I have no interest in writing an encomium to Posner. What's the point in praising an intellectual, rather than engaging with, reacting to, and often criticizing him or her? I don't think he always avoided the merely personal in his criticisms, although I do think that when he offered an evisceration, it was because he thought something someone had written or said merited it, and not simply because he didn't like the person or didn't get a result he wanted. (His highly critical and wonderful evaluation of Aharon Barak is a terrific example. He was equally publicly critical of Robert Bork.) The flavor of his eviscerations was thus entirely different from the tenor of the introduction and conclusion to Adelman's article. In general, I might have walked away from Posner's writing more cynical, but also enriched, and almost never (until the last few years of his active writing) with a sense that he was conducting an uninteresting form of uninteresting politics by other means.

Posner crossed the line--wherever it is--between appropriate and inappropriate remarkably rarely. Surely he did cross it from time to time, even in his prime. But I was inclined to take that as a reasonable cost for getting so much of value; and because I got so much of value from his writing, I was willing to allow a substantial margin of appreciation. Genius makes and gets its own allowances. But genius is rare, and not every judge can walk the high-wire line between saying something interesting and provocative, and saying something that is merely inappropriate, as successfully and without toppling. In a review of one of his later books, I wrote, "I wish more judges, lawyers, and law professors were like Posner. But all of them?...Even a world filled with first-rate Posners would be an unsteady place; one filled with inevitably less capable people, taught nothing but how to emulate him, would be calamitous." Whatever I am willing to forgive a few judges who manage to write and say interesting things extrajudicially, most of them, however bright or brilliant, are but workaday performers. There are good reasons for them to stay in their lane.  

Adelman's article is not even second-rate Posner. I am inclined to be more moderate in my criticism of the article than some of the criticism out there. It is neither as outrageous as its strongest critics suggest nor as fierce and coruscating as its defenders suggest. The least appropriate material comes in the wrapping: its opening sections and conclusion. The rest is a commonplace, fairly cut-and-paste criticism of decisions he dislikes and that many others do too. But it suffers from one major problem and one minor (in a sense) problem.

Its worst crime is its banality. He has nothing new or interesting to say: nothing one hasn't already read in stump speeches, op-eds, and safe and usually mediocre publications like Slate or The Atlantic. Its footnotes are not so much an illustration of learning as a rounding up, for the sake of form and safety, of the usual suspects. (This is a common feature in footnotes and hyperlinks in pieces of  this sort. The way that footnotes and hyperlinks have become a sort of non-scholarly argumentative rhetoric of their own deserves more examination.) His canned history is of the William Manchester variety. All the usual signposts are there, down to the conspiracist focus on the Powell memo. His sin has nothing to do with being right or wrong; there's some of both, and the latter arguably happens more often by omission rather than commission. The article's sin is being boring.  

Because Adelman fairly literally walks a safe party line in his article, a secondary but not unimportant consequence of the article is that it is political in its omissions. It was typical that Posner noted that both Roberts and Sotomayor--and, he might have added, just about everyone else who has faced a confirmation hearing for the past 35 or more years--offered the standard legalist line on judging. I don't think he did it for the sake of even-handedness, but because he thought it was a ritual that infected judicial politics generally and that offered a window into standard views (or tropes) on law and judging; it was the phenomenon that interested him, not the individuals. That Adelman treats the "balls and strikes" statement as seemingly unique to Roberts shows either a remarkable incuriosity, or the kind of blindered perpective and motivated reasoning that must be a terrible and comforting form of self-imprisonment. (It could merely be hypocrisy. But I find hypocrisy uninteresting. Far more interesting is the way in which we convince ourselves with near-total sincerity to see some things and not others.) That Adelman somewhat arbitrarily (by his own admission) begins his narrative in 1971, with a brief prologue of praise for the Warren Court, enables him to omit the fact that it was the Warren Court that resisted positive welfare rights and largely strangled that movement in the cradle. His Bush v. Gore, serving as an exemplar of "relatively direct assaults on democracy," is a 5-4 decision; that seven justices found equal protection problems goes unmentioned. The "unpersuasive" and "catastrophic" Medicaid expansion ruling in the ACA case is laid at the feet of the "Roberts Court" and "Chief Justice Roberts"; any role Justices Kagan and Breyer might have played in "[striking] a mighty blow against a government effort to provide greater equality" is left unexamined.

It is perhaps unsurprising for that reason--indeed, for many reasons, all of which would have led to a much more instructive article, not just about the Roberts Court but about American law and democracy--that although one finds a couple of uses of the word "liberal" in the article, along with a few descriptive references to "Democrat" or "Democratic" and copious references to "conservative" (matches on thirteen pages) and "Republican" (matches on nine pages), one finds only a passing historical reference to "elite," and zero uses of the much-used (and much-misused) word "neoliberal." The possibility that the problem he takes as the larger subject of his article--inequality and disenfranchisement--is a product of a much more systemic environment, one to which conventional liberals and conservatives alike have each contributed in different and similar ways, and in which each have constructed safe harbors for the professional-managerial class and cultivated a community of ultra-wealthy supporters, either does not cross his mind or passes swiftly through it without encountering any obstruction. Adelman was appointed to the bench by President Clinton; Clinton's contributions to "welfare reform," "personal responsibility," "criminal law reform," "unfettering" the banking industry, "Third Way" positions on trade and privatization, and other signal accomplishments again go unmentioned. Adelman illustrates that it is possible to be a "progressive" (as Slate labels him) on some issues and remain firmly neoliberal on others, or perhaps just to be a progressive with a very bad memory. There are far more interesting discussions about inequality and disenfranchisement, formal and substantive, to be found by many writers on both the left and right, and occasionally even by mainstream liberals and conservatives. Adelman's piece, I have said, is uninteresting from any perspective. Perhaps I should have said that the ways in which it is uninteresting are of some interest in themselves.

I began by saying that when it comes to extrajudicial statements, I am willing to forgive much for the sake of genius and for those who make actual intellectual contributions. When a judge's extrajudicial statements arguably cross the line, but only for the sake of what turns out to be a banal position, I am less inclined to be charitable. Perhaps a judge who has something genuinely interesting to say should say it despite his or her office; I don't think that's necessarily the case, but I tend to value it when it happens, even if the statement is arguably inappropriate, and am willing to treat it as worth the cost. A statement that is arguably inappropriate and uninteresting contributes nothing to the discourse. It sacrifices confidence (deserved or otherwise) in the judiciary without offering any intellectual compensation for the sacrifice. I doubt that serious readers would disagree that there is nothing of value or originality here. I suspect that many defenses of the piece would reveal that deep down, most of us have some secret sympathy for Roman Hruska's famous plea on behalf of the "plenty of mediocre judges and people and lawyers" who deserve a little representation. I am only calling Adelman's article mediocre; I have no views about his skills as a lawyer and judge. But it is possible to be a fully competent and even excellent judge without having much of value to say beyond that, at least without entering electoral politics. (Adelman was a state legislator before becoming a judge and thrice ran for Congress. He could, of course, always step down and run again. There's hardly any indignity in that.) I'm delighted to have them doing their jobs. I think it's generally best if they don't do anything else.