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Is Richard Posner a "Conservative" Judge?:
Stephen Griffin offers some thoughts over at Balkinization.
Observer:
In The Tempting of America, Bork noted Posner as a rare example of a judicial activist from the right. Under this view, if we have a continuum from left to right, Justices like Kennedy, O'Connor, Breyer, Souter, etc. are all left-wing judicial activists, Scalia, Thomas and Bork are neither left-wing nor right-wing (as they merely enforce what the Constitution says), and Posner is one of the few judges on the right of Bork, Scalia and Thomas, who actually makes up stuff to promote a conservative agenda.
10.22.2008 1:53pm
frankcross (mail):
That's a little simplistic. Posner tends to be conservative in his votes, but he doesn't make stuff up to promote a conservative agenda. He's not that conservative. I'm not sure I'd characterize him as conservative, though that's plausible. Scalia and Thomas are definitely activists (every justice claims to "merely enforce what the Constitution says" but Scalia on the 11th Amendment doesn't even pretend to do that).
10.22.2008 2:15pm
Joe Kowalski (mail):
Just remember, Judge Posner teaches at the University of Chicago, and may have had lunch with William Ayers at one point...terrorism from the bench anyone? ;)
10.22.2008 2:15pm
Bama 1L:
I don't see how Posner, whether he makes stuff up or not, promotes a "conservative" agenda, unless by "conservative" is meant solely "market-friendly."
10.22.2008 2:17pm
josh:
Definitely the problem with these labels -- and the attendant psuedo-ad hominem debates they lead to (Oh, how I miss The Ace!).

But setting that aside, I wouldn't call Posner a "conservative," but some of the accepted definitions. On social issues, he's certainly libertarian, ralying exclusively on economic theory to describe the way the world is and should be.

On legal interpretation (constitutional, statutory, stare decisis, etc.), he strongly demonstrates what's wrong with "conservatives'" arguments about "textualism," "originalism," "liberal activist judges," etc.

We can probably all agree that the Supreme Court regularly (virtually always) deals only with the hardest cases in which the text, statute, etc. is not as clear as some profess it to be. It wasn't until I became an attorney praticing in lowly state courts that I realized the same problems occur on a daily basis in trial courts.

In my view, Posner tosses out a lot of our common ideas about interpretation and textualism for this very reason. I recall in debate he had with Prof. Al Alschuler and Cardinal Francis George about Oliver Wendell Holmes. Cardinal George was, obviously, arguing in favor of natural law, which Holmes did not prosecribe to. Posner responded, "Of course. WHOSE natural law would you have him apply?"

As lawyers, we all like clear rules that guide the world. I think Posner demonstrates quite often that it's never that simple. As such, I don't think he falls into today's common definition of a "conservative."

[as an aside, i do wish the guy believed in stare decisis a LITTLE BIT more, and cited actual cases in his opinions, just for the assistence of us lowly trial lawyers ...]
10.22.2008 2:18pm
josh:
wow, my typing is bad:

"but" should be "by"

"ralying" should be "relying"

"proscribe" should be "prescribe"

"assistence" should be "assistance."

Apologies.
10.22.2008 2:21pm
Thales (mail) (www):
In a word, no. Posner is a proponent of judicial restraint in the same way that Holmes defaulted to this position, and thus in ordinary cases he tends to defer to precedent and the legislature where these dictate a clear result. But his judicial philosophy is pragmatist, and only values precedent and vague legislative direction (clear direction is another matter) where he deems these things actually valuable, which is not always when weighed in the balance of other factors such as economics, sound or coherent policy, fairness, social and technological change, etc. This philosophy can lead to occasional results that liberals and conservatives alike may, unhelpfully and uninterestingly, refer to as "activist." I think he doesn't truly inhabit the conventional spectrum of judicial philosophy.
10.22.2008 2:52pm
Thales (mail) (www):
Also, I think Posner's critique of Bork and later, Scalia, are some of the best bits written in demolition of unsophisticated originalism and textualism. They certainly clears the way for more interesting variants that actually contribute to jurisprudence, such as those of Barnett and Amar.
10.22.2008 2:54pm
Nunzio:
Posner is neither really conservative or liberal but employs what he thinks is the best result when he's not constrained by precedent or statute (and in state law cases, he will distinguish or interpret to achieve what he thinks will promote the optimal result).

That said, I don't see how Heller's not a practical decision. D.C. and Chicago (where Posner lives) have handgun bans and they both have a tremendous amount of violence. The handgun ban, which law-abiding citizens ignore when it comes to having a handgun in the house, has no effect on crime there.

So Heller just recognizes the obvious. Criminals and law-abiding citizens who fear for their safety in their homes will do what they want when it comes to handguns.

People who say that repealing abortion will just force abortion underground like the old days are correct as well. Handgun bans fall in the same category.
10.22.2008 3:15pm
ASlyJD (mail):
I shall quote my Contracts law professor: Posner is a Vogon.
10.22.2008 3:28pm
Alan Gunn (mail):
Somebody, maybe James Buchanan, reacted in print to the appearance of the first edition of Posner's "Law and Economics" by saying, "this man is a socialist." That seems right to me. The idea that government officials armed with knowledge of economics can and should craft rules to promote efficiency is about as far from Burke or Hayek as you can get. And Judge Posner's writing about economics has concerned itself much more with questions of the "what rule is best" sort than with defending, or even much discussing, market institutions. If memory serves, he hasn't had a lot to say about public choice, either. I think some of this gets overlooked because Judge Posner is extremely smart, and so doesn't put forth the kind of obvious nonsense that a lot of leftists spout.

Disclaimer: It's as true of me as it is of Coase (who said this once) that "Posner writes faster than I can read," so I may well have overlooked something.
10.22.2008 3:39pm
frankcross (mail):
Alan Gunn, I'm at loss over that argument. Government crafts rules, though Posner often thinks they shouldn't. When they do craft rules, he thinks they should craft the more efficient rule. The alternative is a less efficient rule. I can't for the life of me see how this is socialist or anything other than what Hayek would think. Remember, Hayek was a big believer in common law rules. Maybe you have an example of Posner as socialist?
10.22.2008 3:51pm
BruceM (mail) (www):
I'm a huge fan of Posner, and I've long thought him to be the smartest jurist in America. If he were a truly "conservative" judge (whatever that means: pro-religion?) I dont think I'd like him as much as I do. I don't see how law and economics is liberal or conservative. If anything I'd call him libertarian... but I don't think political words work well to describe non-religious judicial decisions.

That being said, I've been horribly disappointed in Posner's caving in to the "war on terrorism" post-911 claims of executive power. It seems even the smartest guy in the room was able to be fooled by a combination of direct threat and appeal to emotion.
10.22.2008 3:56pm
Cornellian (mail):
The idea that government officials armed with knowledge of economics can and should craft rules to promote efficiency is about as far from Burke or Hayek as you can get.

If the status quo rules aren't efficient, there's nothing particularly objectionable about making them more efficient. Government "crafted" the rules we live under now so a "government shouldn't craft rules" argument is hardly an argument in favor of the status quo.
10.22.2008 4:04pm
Cornellian (mail):
Scalia, Thomas and Bork are neither left-wing nor right-wing (as they merely enforce what the Constitution says)

I'd sure be interested to see the last time Bork merely enforced what the Ninth Amendment says.
10.22.2008 4:05pm
Alan Gunn (mail):

Government crafts rules, though Posner often thinks they shouldn't. When they do craft rules, he thinks they should craft the more efficient rule. The alternative is a less efficient rule. I can't for the life of me see how this is socialist or anything other than what Hayek would think.



Common-law judges used to say they were "finding" the law, not making it. This is a principle that Burke would have approved of and which Judge Posner, I'm pretty sure, has ridiculed. It's out of fashion now, but that doesn't mean it was wrong. The idea, considerably oversimplified, is that the courts should decide whether people followed existing, accepted practices. This is a far cry from asking what practices people should follow to get good results in the future. Hayek's spontaneous order doesn't emerge from people legislating what they think would be efficient across the board. Frank Cross's incredulity reflects the remarkable hold that the "judges as legislators" view has on today's legal mind: It's hard for some people to see that things once were different, or even that they could be different. Perhaps the difference in attitudes is best captured by looking at Erie RR v. Tompkins. Most lawyers today think it so obviously right that Justice Story's earlier decision the other way must have been the product of stupidity, or of a hidden policy agenda. I think Story was right, and the Erie Court wrong.

For one example of the sort of thing I'm talking about, see Kelly, Who Decides? Community Safety Conventions at the Heart of Tort Liability, 38 Cleveland State L. Rev. 315 (1990). There's also an excellent article by Steve Smith (also on torts, specifically), but I don't have the citation handy.
10.22.2008 4:37pm
Oren:


I'd sure be interested to see the last time Bork merely enforced what the Ninth Amendment says.

Didn't his copy get smudged or something?
10.22.2008 4:42pm
Helene Edwards (mail):
Alan Gunn, have you ever been mistaken for a Scotland Yard detective?
10.22.2008 5:19pm
Libertarian1 (mail):
Somebody, maybe James Buchanan, reacted in print to the appearance of the first edition of Posner's "Law and Economics" by saying, "this man is a socialist."



I didn't know Posner was black. Buchanan is obviously a racist.
10.22.2008 5:39pm
Matt_T:
I didn't know Posner was black. Buchanan is obviously a racist.

If we're on a witch hunt for closet racists, you've also started with the wrong Buchanan.

(I also found the claim that "socialist" is a code word for "black" an incongruous bit of fearmongering by people that seem to have the better of this election.)
10.22.2008 6:12pm
very old reader:

I didn't know Posner was black. Buchanan is obviously a racist.


Oh, he surely was. That's why he did nothing to stop the slide toward secession by the slave States.
10.22.2008 6:53pm
JEN:
Allow me to answer: NO.

And as for Posner decisions, there was nothing my law school classmates and I loathed more than drawing a Posner opinion in a casebook.
10.22.2008 7:23pm
Craig R. Harmon (mail):
Does the fact that Posner does not consider himself a conservative not enter into this or are we arguing whether Posner IS a conservative even though he does not consider himself one? By his own description, he is a pragmatist. That is, he might find reasons for arriving at decisions that appear to be conservative but he would do so for reasons that no conservative would touch with a ten foot pole: because the decision best fits his economic calculus, not because it is tried and true and certainly not because it aligns with some religious law from on high but because it does less damage to society and seems to have greater potential for improving society than other possible decisions. In short, if his legal theory and reasoning as expressed in Overcoming Law are the standard of judging whether Posner is a conservative, he clearly is not a conservative and what other standard would make sense using (assuming, of course, that judge Posner is self-aware enough to know his own judicial philosophy and is not actually intentionally misleading his readers in his own published works).
10.22.2008 10:36pm
frankcross (mail):
Posner has simply identified that the "judges as legislators" always existed. And it certainly existed in the common law, didn't it? Judges created new causes of action out of nothing. And new defenses. Common law is judge made law. By its nature. You can't defer to "existing, accepted practices." There was no liability for negligence, existing, accepted, or otherwise, until judges created it. Are you claiming that negligent parties customarily compensated their victims, without legal compulsion, prior to the law of negligence?
10.22.2008 11:56pm
trad and anon:
I'd call Posner right-wing but "conservative" seems inapt.
10.23.2008 2:45am
titus32:
And as for Posner decisions, there was nothing my law school classmates and I loathed more than drawing a Posner opinion in a casebook.

Really? Why? I assume you disagree with his legal approach, but his opinions are well written, come from a unique perspective, and are often entertaining.
10.23.2008 12:07pm
zippypinhead:
You simply can't pigeon-hole Judge Posner into any of the typical political or judicial categories. The guy is unique (thank heavens). A cynical appellate litigator friend once referred to Posner as Exhibit A for the proposition that there should be a MAXIMUM IQ ceiling for appointment to the Federal bench. Or to put it differently, given the scary way his brain is wired, Posner should never have been permitted to leave University of Chicago grounds without a team of handlers holding his leash.
10.23.2008 4:59pm
JohnnyHorizon (mail):
I find judge posner's jurisprudence very reassuring. Law exists to serve society, not the other way around. the problem with calling him undemocratic is that it assumes, naively, that all problems in a democracy must be immediately solved by democratic methods. as judge posner has put it, any case before him got there because it was a hard case, and the existing law, democracy be damned, did not adequately cover those circumstances for some reason or another. as judge, he then has to fill in the gaps as best he can, and his refusal to rely on only one rhetorical tool (e.g. textualism) is no different than a carpenter's refusal to only use one shop tool. I don't see how that is activism in its usual sense.
10.23.2008 9:50pm
Craig R. Harmon (mail):
Judge Posner is arguably an activist because, as he freely admits, he makes decisions up rather than relying upon the text, any sort of originalism or organic connection to previous decisions as requiring any particular decision. As a pragmatist who has no use for tradition, legal or otherwise, for originalism of whatever sort but, rather, relies upon his own calculus of pluses and minuses to decide upon the best solution to the problem at hand, he fits the bill of an activist. I don't mean to say that he is ideological in any way but I mean to say that, it seems to me, he rules according to his own lights, his own idea of what decision will maximize benefit and minimize harm in whatever situation is before him rather than relying upon some organic connection to existing law or previous decisions. How else would you define activism?
10.25.2008 2:46am
Michael F. Martin (mail) (www):
He's a Milton Friedman style liberal. Not a Burkean conservative.
11.2.2008 11:50am