October 27, 2016

"I think the Supreme Court is awful. I think it’s reached a real nadir."

"Probably only a couple of the justices, Breyer and Ginsburg, are qualified. They’re okay, they’re not great."

Said Judge Richard Posner of the Seventh Circuit.

"Qualified" is the new high standard. We're lucky to get an okay judge these days. Greatness is showy and not a good way to get a lofty judicial nomination. Greatness is disqualifying... and I'm sure Posner knows that.

84 comments:

traditionalguy said...

He is being a little Judgemental there.

rhhardin said...

More nous and less hyle.

Ian F. Shield said...

And the Seventh Circuit is pretty bad, too.

Posner has degenerated into an asinine leftwing crank - Bill Maher in a black robe.

buwaya puti said...

And yet they voted for Obamacare.

?

Goes to show that an appreciation for legalistic clockwork has nothing to do with real life. Other countries get their work done with wildly different clockwork, usually better and almost always much more efficiently.

There is no inherent value in the clockwork. It serves no purpose on its own. Its a means to an end.

David Begley said...

My low opinion of Posner was just reaffirmed. What a jerk.

Unknown said...

Can't spell "Posner" without POS.

Ignorance is Bliss said...

I think it’s reached a real nadir.

While I agree with him about how bad* the current court is, nadir implies that it has reached its lowest point, and will go no lower. I fear this is not the case.

*I haven't read the linked article, but I suspect I disagree with him on the way in which it is bad.

readering said...

What do his colleagues think of him if he denigrates the justices like that?

Sebastian said...

""Qualified" is the new high standard. We're lucky to get an okay judge these days. Greatness is showy and not a good way to get a lofty judicial nomination. Greatness is disqualifying... and I'm sure Posner knows that." He knows nothing of the kind. He is a lawless narcissist masquerading as a judge. Qualification and greatness are irrelevant, except insofar as they serve rhetorical campaigns to get nominations passed. The one true thing P said is that politicians are politicians and treat SCOTUS strictly as politics -- which it is, and they should. Of course, by traditional standards, John Roberts was a "great" nomination" -- so O opposed him. Ginsburg and Thomas have the virtue of being utterly predictable -- but Ginsburg in that she will say anything needed to reach her preferred result (hence Posner's respect) and Thomas in that he will relentlessly apply the same kind of argument (anathema to the "great" Posner). By the way, loose-cannon Posner seems even looser than usual here: is that man right in the head?

Brando said...

When were they ever great? All we want is a sensible interpretation of the law. Great flourishes of brilliance usually mean they depart from that duty.

cubanbob said...

"Probably only a couple of the justices, Breyer and Ginsburg, are qualified. They’re okay, they’re not great."

Posner should follow his own admonition and resign today.

EDH said...

Posner is a poseur?

glenn said...

I call "Boomer"

MikeR said...

Who is this guy again? Would someone post an article about this one physicist's opinion of those Nobel-Prize-winning physicists? Or some politician's view of some other politicians?
A lot of this kind of nonsense follows the rule that I think people who agree with me are really smart.

Mattman26 said...

I practice in the Seventh Circuit, and can remember a time when Posner was an intellectually vibrant and fascinating jurist. Nowadays it's hard to believe there was such a time. He hectors, he repeats himself, he won't let anyone get a word in edgewise, and as you can see from these quotes, he's become like a grandpa who's lost the filter between brain and mouth. Talk about a nadir.

Stephen said...

Critics often make a lot of sense until they are asked to list their own best books, films, politicians, etc. OK, Judge P., who are your top ten people who would bring greatness to the Supreme Court? (We already know who's on top, so you only have to come up with nine.)

The Vault Dweller said...

Wow, I remember when Posner was seen as a 'conservative' justice.

Nigel Tufnel said...

I coulda been a contender. I coulda been somebody.



dreams said...

An old man with an old brain, sad. He's not aging well.

Nigel Tufnel said...

It's interesting he thinks most of the SCOTUS opinions are not readable. His authored opinions meander about. He says he likes Breyer's writing, but he's the most meandering of any of the current justices.

I listened to a recent oral argument in a contract case where he was admittedly confused over a very simple concept. Judge Bauer (I believe) gently assisted to ensure all others that the rest of the court understood. I actually felt bad for him.

Hagar said...

Great justices agree with me.

dreams said...

As to Ruth Bader Ginsburg, it seems the Grim Reaper has been remiss for that poor thing is well past her sell by date.

dreams said...

I forgot to say bless her heart.

Barry Dauphin said...

Posner sure talks a lot.

Rocketeer said...

After giving a shout-out to his research assistants, Posner made a “just do it” comment that struck me as both wise advice and a perfect encapsulation of his life and career.

Research assistants: like law clerks, but for authors. Really, if authors were forced to conduct their own research it would be a great thing - half of them would resign immediately.

Mike Sylwester said...

This is what happens when Scientific Progressives are allowed to become judges.

The Vault Dweller said...

Hmm reading through the article, I guess I never really realized how detached from normal jurisprudence Posner is. He goes on about how he didn't like how Alito wrote 40 pages about Res Judicata when the majority opinion addressed it, fair enough. But one of his rationales is that he thought Res Judicata was just some made up common law doctrine that they shouldn't have worried about because there are important principles to address. Adhering to 'made up' common law principles is kind of how are system works.

Though I do agree with him opinion that all appellate judges should have trial experience. It doesn't necessarily have to be as a trial judge but they should have a few years experience actually in court rooms in cases as they are decided at the ground level. Facts at trial are considerably more messy than they appear when you get a record. Appellate cases shouldn't be viewed as some abstract academic exercise. Having trial experience gives you a good experiential basis for remembering that as an appellate judge you are ruling on an actual case involving an actual dispute between actual people.

Lyle Smith said...

I think some of Ginsburg's opinions are messy.

Owen said...

The Vault Dweller: "...Having trial experience gives you a good experiential basis for remembering that as an appellate judge you are ruling on an actual case involving an actual dispute between actual people." Sounds like excellent advice. For the same reason I would like a jury of my peers to be people who have done more than peddle abstractions and engage in virtue-signaling.

By the way, Posner's remark exposes him to the Sour Grapes branch of literary analysis...

mtrobertslaw said...

I highly recommend Posner's garbled musings on the law for comic relief. He reminds me of the guy who spent his entire life trying to come up with a container that would hold the universal solvent he claimed he had invented.

CJinPA said...

Disheartening to know that judges who, like Posner, find the Constitution to be an impediment to Enlightened Progress, will soon take over the Supreme Court, the last, desperate outpost of our constitutional republic.

Earnest Prole said...
This comment has been removed by the author.
mccullough said...

Get off my lawn!

Earnest Prole said...

Our political culture is so degraded that even our most esteemed jurist now talks like Donald Trump tweets. “The Supreme Court is full of losers.” “Its last term was a flop.” “Alito’s a bore.” “The justices are awful.” “I feel bad for Roberts — the man has no class.”

Skeptical Voter said...

I'm trying to recall the name (mercifully suppressed in my memory) of a California Supreme Court Justice who had been on the court for a very long time. His mind did not age well. A California Supreme Court Justice has to face re-election every twelve years, but essentially it's an appointment for life. Only two sitting Justices in my lifetime have failed to win re-election. In practice you either choose to resign, or you die.

As he aged, "lost his marbles" and refused to leave the bench, a proceeding was started to forcibly remove him from office--a very nice gentlemanly administrative proceeding. A key element of evidence offered as to his absent mindedness was the fact that he went to the men's room to use the urinal, and failed to remove his raincoat and other outer garments before letting fly.

Sounds like Posner is not far from the 'unzipped raincoat" stage, although here he's simply letting fly on his judicial betters.

Big Mike said...

Unless of course it's Judge Posner who's reached his nadir.

Achilles said...

He is totally right. The Supreme Court is terrible.

So is he.

dbp said...

What? The wise latina didn't make Posner's cut?

The Vault Dweller said...

Owen said, "Sounds like excellent advice. For the same reason I would like a jury of my peers to be people who have done more than peddle abstractions and engage in virtue-signaling.
"


That sounds very prudent. Similarly every attorney I've spoken with who does defense work on civil cases has consistently told me they never want someone on their jury who hasn't worked a lot. If you've mooched off of other people a lot then whether the Plaintiff's attorney asks for $100,000 or $1,000,000 it doesn't make a difference to you because they are all just big numbers. But if you have actually had to work a lot, and you work very hard for an entire year to pull down $65,000 then you start to actually pay attention to the numbers.

David said...

" I'm sure Posner knows that."

The man is turning into a crank.

quizbowla said...

When Reagan nominated him to the Seventh circuit in 1981, a minority of the American Bar Association rating committee voted Posner "not qualified." A majority voted him "qualified." Republicans took this as initial evidence that the ABA was a liberal institution and not to be trusted to evaluate judicial nominees.

jimbino said...

I'm still waiting for the first non-Jewish, non-Roman Catholic, non-Harvard/Yalie, non-humanities major on the high court. Maybe even an economist or a physicist or one, like David Friedman, who is both.

gspencer said...

What Buckley said years ago still rings true with me, "I'd rather entrust the government of the United States [judicial branch especially] to the first 400 people listed in the Boston telephone directory than to the faculty of Harvard University [or any of today's bien pensants]."

Dust Bunny Queen said...

Posner: Qualified = agrees with my political viewpoint and rules according to that political bias.

Not exactly what the Founders intended of the Supreme Court. I doubt that they wanted a political echo chamber. I believe it was to be a check on the other two branches of government by interpreting laws according to Constitutionality.

Chuck said...

Posner used to be my absolute favorite U.S. Circuit Court Judge for his decision in Austin v. AANS (an old medical expert decision that only the medical malpractice litigation cognoscenti would care about).

Now, I can only conclude that he's someone who talks, and writes, WAAAAY too much. His decision in the Wolf/Baskin same sex marriage cases, in which he had reversed his own views on the constitutionality of same sex marriage cases 180 degrees, shows me someone who has lost his way as a judge. And that is a personal judgment in which I take zero pleasure. Few people in the law make me as sad as Posner.


Owen said...

The Vault Dweller: "...whether the Plaintiff's attorney asks for $100,000 or $1,000,000 it doesn't make a difference to you because they are all just big numbers...."

Bingo, *again*. Yes, we all tend to collapse those "big numbers." I have seen big shot CEO's and boards shrug and agree to round off a merger offer to the nearest few billion. Because they cannot possibly process the numbers in a "felt" way.

And that's in a situation where, at least theoretically, it's "their" money (the shareholders', really, but they have been engaged as its stewards). When the situation is a jury room, and it is most definitely other people's money, who could possibly want to think hard about the difference between 10 exp 5 and 10 exp 7? The point is, to Make a Statement! To virtue-signal!

Therefore all the more reason to find jurors who can (to some extent) appreciate that the difference between 10 exp 5 and 10 exp 7 is more than a lifetime of somebody's effort and care.

The Vault Dweller said...

Owen said, "Bingo, *again*. Yes, we all tend to collapse those "big numbers." I have seen big shot CEO's and boards shrug and agree to round off a merger offer to the nearest few billion. Because they cannot possibly process the numbers in a "felt" way."

A good example was the Hulk Hogan case. He was awarded about $140 million dollars for his sex tape being published. Now if the average American household earns about $50k a year that household, assuming no interest, have to work for 2,800 years to pay off that debt.

Now I am no fan of gawker. And I will presume there was good reason to find them liable, but I don't know how any rational thinker can arrive at that number and not stop and think 'whoa!'. Especially when it's equivalent is the average american household working continuously since before the Roman Republic was founded.

Left Bank of the Charles said...

If the current Roberts Court is the nadir, I wonder when Judge Posner thinks was the zenith?

He likes Justice Breyer, who came on the Court to replace Justice Blackman in 1994, but has poor regard for Justice Alito, who replaced Justice O'Connor in 2006. The mid-point of that range would be 2000, when Bush v. Gore was decided. He did write a book on that, Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts.

Paul Zrimsek said...

A damn good thing he never made the Supreme Court himself, considering how much the 7th Circuit has gone to his head.

coupe said...
This comment has been removed by the author.
traditionalguy said...

OK. Let's go for peak nadir. Appoint Ralph Nader.

Ambrose said...

Shorter Posner: "The Supreme Court is so bad I am glad I am not a member. Really, I would not agree to be a Justice on that Court, even if appointed. Really, I am serious, very serious, no lie ...."

Meeeea said...

Ian: "Posner has degenerated into an asinine leftwing crank - Bill Maher in a black robe"

Couldn't agree more.

Chuck said...

Here's a comment I want to single out for high quality from above. I practice in the Sixth Circuit. Where we have, uh, our own issues. But from what I know, having had to deal with some Posner/Seventh issues, strikes me as right on. Thank you very much, Mattman:

Mattman26 said...
I practice in the Seventh Circuit, and can remember a time when Posner was an intellectually vibrant and fascinating jurist. Nowadays it's hard to believe there was such a time. He hectors, he repeats himself, he won't let anyone get a word in edgewise, and as you can see from these quotes, he's become like a grandpa who's lost the filter between brain and mouth. Talk about a nadir.

Jeff Weimer said...

I like the parts where Posner castigates law clerks as part of the problem, then "gives a shout out" to his "research assistants" because they help make him more prolific.

Mick said...

Breyer and Ginsberg? Probably the most incompetent. What an idiot. The Judiciary is infected with these political hacks and fools.

mockturtle said...

Face it, folks. Greatness is a thing of the past. No one is allowed to be great any more. Our standards have become increasingly lowered by our lame educational system, the media and the drivel of our popular culture. Trump, at least, is no poseur.

damikesc said...

Posner is a fucking clown.

If NO SCOTUS justice was ever confirmed again, I'd be OK with it dying off.

Yancey Ward said...

This sounds like sour grapes to me. Look at the trajectory of Posner's career- is really does look like an attempt to get appointed to SCOTUS by every single president of the last 35 years.

Chuck said...

Yancey Ward said...
This sounds like sour grapes to me. Look at the trajectory of Posner's career- is really does look like an attempt to get appointed to SCOTUS by every single president of the last 35 years.


My own guess, is that when it went Bork>Ginsburg>Kennedy back in '87, Posner knew that his time had come and gone, and he'd never, ever be nominated. Too much Borkiness in him, in a new era of confirmations. And so he blew off steam in print after that. And has been doing so ever since. He was such a smart, well-informed and capable guy, he couldn't help but do some good work.

But geeze, what a regrettable run of bad judgment and self-absorption for Posner's last 10-15 years.

I will say; he's only -- "only" -- 77. And is right now the Chief Judge of the Circuit, (right?!?), and not on Senior Status. Damon Keith -- a wholly different kind of maniac -- is still hearing hotly contested cases (like a recent Ohio election law case) at age 94 on the 6th Circuit.



hombre said...

How surprising that Posner who has toiled for years on the US Court of Appeals, claims the only qualified Justices are two who have done the same. Many of us who actually practiced law throughout our careers have seen the damage done by the plague of "robitis" among modern, left-wing jurists. Tenure on the bench is as likely to be a mark of "unqualified" as "qualified."

The plague of elites burdening the country is the quintet of political elites, media elites, judicial elites, corporate elites and, dare I say it, academic elites. Trump is a tergiversate, of sorts, from the quintet and must be destroyed.

The aristocracy abides!

Chuck said...

hombre said...
...
The plague of elites burdening the country is the quintet of political elites, media elites, judicial elites, corporate elites and, dare I say it, academic elites.

Do the burdensome "elites" include Justices Thomas and Alito? Did they include Scalia? Do the Senate "elites" include Rand Paul, Ted Cruz and Marco Rubio? Do the House "elites" include Jason Chaffetz, Justin Amash and Jim Jordan? Do the media "elites" include Steve Hayes (one of the toughest anti-Hillary investigators in print), Charlie Sykes and Hugh Hewitt?

Or are there some good elites and some bad elites, depending on who you like?

Skipper said...

Is this Posner's way of complaining that he hasn't appointed to the Supremes?

mockturtle said...

Trump is a tergiversate, of sorts, from the quintet and must be destroyed.

I don't believe Trump was ever part of the quintet.

tim maguire said...

Posner is over-rated. Always has been.

Mountain Maven said...

Envy is an ugly sin.

Paddy O said...

For whatever reason, this came to mind.

buwaya said...

"Or are there some good elites and some bad elites, depending on who you like?"

Isn't this always the case?

hombre said...

Chuck wrote: "Or are there some good elites and some bad elites, depending on who you like?"

The qualifier was "burdening the country." Obviously, the question of "good" or "bad" depends on determining whether or not an elite is "burdensome." Equally obviously, that determination is likely to be subjective. However, except perhaps in your case, it is not about who you "like."

Hope that helps.

sykes.1 said...

Poster believes that the Constitution is irrelevant to jurisprudence. He, himself, is unfit to serve as a judge.

Ann Althouse said...

Did you know the I opened up the comments section because of something Judge Pisner wrote back in 2004?

I'd had comments for a short time earlier that year and sworn them off but I was convinced to open them back up.

Francisco D said...

Chuck,

I have not been on the site for a while. Please forgive me for not being in touch with the current events here.

If I recall correctly, you are a life-long Republican who has "concerns" about how the party has drifted.

In this post, you sound like a typical left wing troll. Have I missed something in my absence?

Note: This has nothing to do with Donald Trump.

wholelottasplainin' said...

For some reason, when I read "nadir" I always think of Ralph.

I suspect most people do.

wholelottasplainin' said...

"I will say; he's only -- "only" -- 77. And is right now the Chief Judge of the Circuit, (right?!?), and not on Senior Status. Damon Keith -- a wholly different kind of maniac -- is still hearing hotly contested cases (like a recent Ohio election law case) at age 94 on the 6th Circuit."

*******************

David Souter is still having clerks empty his droolcup as he hears 1st Circuit cases.


Birkel said...

Chuck, the lifelong Republican, wonders who is and is not elite. The answer lies in whether the people discussed believe they are individually more qualified to answer questions than the received wisdom of 300+ million Americans and would substitute their individual judgment in spite of the will of the people.

Shorter: Chuck is an elitist ass hole and believes himself superior. Therefore he cannot recognize elitism in others.

protestmanager said...

Everything you need to know about Posner can be summed up in the fact that he believes "Breyer and Ginsburg, are qualified", and Thomas and Alito are not.

What a joke.

BN said...

"Nothing" apparently is indeed a higher standard than "Qualified."

For the Supreme Court Jesters.

narciso said...

yes, chuck there are, I don't know if I'd put rand in the elite category, even with his incipient dynasty, jordan and amash are certainly populist politicians,

you were thinking of rose bird,

narciso said...

that was for skeptical voter,

Jupiter said...

Mattman26 said...
"I practice in the Seventh Circuit, and can remember a time when Posner was an intellectually vibrant and fascinating jurist."

Hmmm.... All you lawyers seem to think that law is like physics, there are these unsolved problems that some smart guy could solve, and that would make it better. I don't think that's right. It seems to me that there is a lot to be said for predictabilty in the law. At least, if you are trying to obey it. Or rather, avoid getting totally fucked over by it.

I guess if your opinions are so unpopular you can't get elected (a pretty low bar, I'd say), but you still believe you deserve to legislate, then, yeah you're gonna need some ingenuity. You have to take the laws someone else wrote, and read them to mean what you would have written.

This is the problem with trying to build a machine using humans for the moving parts.

Chuck said...

Re: "elites"

I can't think of anything more uselessly vague, and a more pointless jerkoff, than griping about all of the "elites," as if they held board meetings with an agenda and determined how to screw everybody else.

As if Mike Lee, Ted Cruz, Nancy Pelosi, Elizabeth Warren, Jamie Dimon, Gorge Soros, David Koch and Rupert Murdoch were all part of the same club.

Nonsense; they spend their lives and fortunes working against each other.

hombre said...

Chuck: "I can't think of anything more uselessly vague, and a more pointless jerkoff, than griping about all of the "elites," as if they held board meetings with an agenda and determined how to screw everybody else."

Nice try, Chuck. We know you never gripe about anyone or anything, particularly in a pointless jerkoff way. But you don't seem to have the same problem distinguishing "Trumpists" and "deplorables?"

mockturtle said...

Chuck: "I can't think of anything more uselessly vague, and a more pointless jerkoff, than griping about all of the "elites," as if they held board meetings with an agenda and determined how to screw everybody else."

What? You've never heard of the Bilderberg Group? ;-D

Fen said...

Shorter Chuck: There is no such thing as the "mafia".