October 28, 2016

Judge Posner "corrects" his statement that only Justices Ginsburg and Breyer are "qualified" to serve on the Supreme Court.

I blogged the statement yesterday, here. Maybe Judge Posner read some of your scornful comments, because now there's this:
The second correction I’d like to see made has to do with my saying that none of the sitting Justices (plus Scalia) is “qualified” for the Supreme Court except Ginsburg and Breyer. This could be misunderstood to mean that I think the others lack the necessary paper credentials, of which the most important are graduating from a law school and passing the bar exam (though one of our greatest Justices, Robert Jackson, had just a year of law school, and did not graduate). That was not my intention in using the word “qualified” (if I did use it). I meant good enough to be a Supreme Court Justice. There are something like 1.2 million American lawyers, some of whom are extremely smart, fair minded, experienced, etc. I sometimes ask myself: whether the nine current Supreme Court Justices (I’m restoring Scalia to life for this purpose) are the nine best-qualified lawyers to be Justices. Obviously not. Are they nine of the best 100? Obviously not. Nine of the best 1,000? I don’t think so. Nine of the best 10,000? I’ll give them that.
I wouldn't call that a "correction." It's pretty much what I understood him to mean the first time around.

And as long as I'm going back to that, let me explain what I meant yesterday when I related that Posner post to the post quoting Howard Stern saying that Donald Trump was able to do a good Howard Stern Show interview because he got in "the spirit of the show" which is "to talk like real people." I said:
Talking like a real person... then running for office. That's dangerous... unless you're a saintly real person. Most politicians get on-task, self-censoring, and robotic. That's the normal way to stay out of this kind of trouble.  
To get appointed to the Supreme Court you have to control your speech and not give the President's antagonists material they can use against you. You cannot be Robert Bork. That is, you cannot be an outspoken, interesting person like Judge Posner. That's what disqualifies you politically. So there's reason to say that everyone who is really qualified is politically disqualified.

And I do regret using the word "saintly." I think more highly of saints than that, and I bow to Paddy O's comment:
A saint would have even less chance than Trump. A real saint offends all the powerful, so wouldn't even get a chance to stand on a primary stage.

43 comments:

Michael K said...

All I know about Posner is that when Conrad Black appealed his conviction on vague offenses that had little bearing on real life, the Posner court reinstated a charge that the trial court had dismissed.

That is a particularly nasty form of double jeopardy.

mccullough said...

He should have wrote "resurrect" Scalia instead of "restore." Posner is Jesus and Scalia is Lazarus. As it stands, Posner is the witch and Scalia is Jon Snowe. Either way, Posner won't let Scalia go.

Static Ping said...

Considering that the Supreme Court is more about getting a certain outcome than following the Constitution and the law in anything resembling a neutral fashion, I think the judge protests too much. Really, in its current form anyone who can avoid jail time is qualified.

I have already been exposed to Posner. He impresses me less with each exposure.

Psota said...

I can remember reading in Jan Crawford Greenberg's book about the Roberts/Alito nominations that GW Bush rejected a couple prospective nominees because he thought they were jerks and wouldn't fit in with the Court. Collegiality is a reasonable qualification and one that Posner would not meet.

Achilles said...

Posner was right in one respect. Most of the justices were not picked based on qualifications. Most of the justices are part of the aristocracy. They went to the right schools and they have been fundamental in destroying the constitution no matter who nominated them.

Thomas is the only iconoclast/traitor.

Sebastian said...

"Are they nine of the best 100? Obviously not. Nine of the best 1,000? I don’t think so. Nine of the best 10,000? I’ll give them that." God, what an asshole. Will he ever shut up?

As Ping implied, for progs it's all about outcomes. so anyone will do. For many cons, it's about outcomes too, but at least they have to fake commitment to original meaning etc. etc. Of course, for actual GOP appointees it doesn't matter a bit, and they typically veer left, toward whatever results they prefer to rationalize, as we saw in Brenann, Stevens, Souter, and Kennedy.

gspencer said...

If you've been confirmed by the Senate, via advise-and-consent, ipso facto you're qualified.

And should DJT win the election, confirmed by the EC's electors, he, being at least 35 years of age and a natural born citizen, is qualified.

All the rest of it is raw opinion as to who's qualified.

Bill Peschel said...

I think gspencer said it best.

Posner didn't do himself any favors with this statement. Clearly, plain-speaking is not among his skills.

First, I have no idea what he calls qualified, except by his later statement that they could be among the top 10,000 justices in the country. Which is sheer bosh. What does that even mean?

Are the knowledgeable about the Constitution? Do their opinions and dissents make a sensible, understandable and logical argument? Are their questions from the bench worthy of making?

The older I get, the more I suspect that most of the opinions expressed are not very well considered. Gaining a deep understanding of a subject is nearly impossible. It takes time and an investment of much energy to reach some understanding that allows us to debate the pros and cons of anything, be it a movie, TV show, notable book, climate change, or the quality of a Supreme Court justice.

Most of us fake it.

Static Ping said...

Sebastian, I totally agree. Sadly.

In theory, with conservatives it is easier to stay true to the Constitution and select nominees that get the desired outcomes. The Constitution was designed to be a limiting document and nominees who are true to the Constitution will tend to have conservative rulings. There are going to be tough cases that will not get the desired conservative outcome, but at least in those cases there will be a legal argument that can be rationally developed from the source material.

That's why the left is all into the concept of the living Constitution, where what the document says can be safely ignored. When penumbras and "dignity" start showing up in arguments, there is no reason for any rational human being to take the court seriously beyond anyone takes the law making of a dictator seriously: you can force me to do this, but it is illegitimate just the same.

n.n said...

Posner is looking out of, while we're looking in to... the twilight zone.

tim maguire said...

I've heard the Supreme Court described as 9 mediocre lawyers, I don't think Posner is blazing new ground with his reinterpreted remarks. But I would note that many smart people disagree with his fundamental assumption that the nine justices should be the country's nine best lawyers, or even that all of them should be lawyers.

But that's Posner for you. Sounds great until you take a look at his assumptions--which he does too little of.

robother said...

Saintly should never be confused with being a goody two shoes.

Big Mike said...

That was not my intention in using the word “qualified” (if I did use it).

Did he or did he not use it? Someone roll the tape!

lgv said...

This isn't a correction. We inferred his meaning correctly. Now is creating a whole new meaning "best" qualified from a legal mind category. He will only give the current bench a top 10,000 rating.

It goes back to his interpretation of the word "qualified", not in a bar passing or political sense. What is it that defines the qualification? Perhaps some type of legal scholarship? Would a brilliant criminal lawyer who has never lost a criminal case be qualified? Can a brilliant intellectual property lawyer not be able to evaluate cases as well that are heard at the Supreme Court? Posner does not give any inkling of what qualifies one or what evidence indicates these qualifications. Probably only people of the same type of brilliance as Posner.

Sorry, the issues and interpretations brought to the Supreme Court are not puzzles that require IBM's Watson to resolve.

If you could get Posner to define the metrics of proper qualification, I'm sure most of the justices for the last 40 years couldn't pass muster, including the ones he likes.

D. B. Light said...

Posner is just disappointed that he was never appointed. Obviously he thinks he's much more qualified than the current justices.

Tim said...

We would be far better off with 9 (8? 6? 11?) justices that are not lawyers. All you need is an ability to read and understand Engilsh. If the question is too esoteric or vague it does not meet constitutional clarity.

Ken B said...

I didn't mean they were uncredentialed dolts, I meant they were stupid dolts.

Otto said...

"To get appointed to the Supreme Court you have to control your speech" So why aren't you calling for RBG to resign.
Also have you ever stated in your classroom that Robert Bork was not qualified to become a Supreme Court Judge because he
couldn't control his tongue?

Barry Dauphin said...

A psychiatrist said I was crazy. I said I want a second opinion. He said OK, you're ugly too.

Bob Loblaw said...

Thomas is the only iconoclast/traitor.

He does seem to be the only one who thinks his job is to apply the constitution to the cases at hand. What a dummy!

RonF said...

He probably thinks that he should be on the court.

BudBrown said...

I like the going to law school and passing the bar credentials.
Wonder what he thinks of those schools where if you pay the big
bucks and make it to graduation you don't need to take any bar test.

Guildofcannonballs said...

Yeah Saints offend the all powerful.

Idiots.

I cannot heap the abuse needed to prevent your trips to the gassy non-ass chambers, shan't even try no more.

Others that can be teach/reach-ed listen up: Justice is a game. Anyone, win oR lose, who gambles a dime on a sport is more heroic than any legal mind save Justice Thomas.

Cogs cogging merrily.


Now you rich fucks reading this pay Laslo like I told you to, or Justified.

Call me Boyd or Raylen or Nic Searcy I don't give no fucks, unless I prove to myself I am Dewey Crowe. Mom and dad raised me better than that.
You put youR money where your heart is you win life's game.

Guildofcannonballs said...

Sotomayer can know wise Latinas are worthy of verbalization, but Bork is WAY beyond the pale.

Like a POTUS talking about doing some blow used to be uncool.

But when Obama does it, it was a mistake and he is sorry. The law is his bitch now as it was then: Ultimo Alpha King Barry! Hah he showed how the system is corrupt because HERO.

Your cousin in Chino? That fucker threatened the Nation as exactly did Escobar and shit, man. DRUGS KILL SON, HOW MUCH YOU BEEN DEALING BOY?

Guildofcannonballs said...

Some cunt lawyer can get me my $7 Billion from UW for not teaching me Latin, as I had argued I wanted to learn to no avail because of sexual harassment, then we can talk.

As is, ass is too verily Freud would/has said, I WILL LEARN LATIN ON MY OWN AND DEFEAT ALL ENEMIES IN EARNEST.

EO IPSO.

rhhardin said...

That's why there are nine justices. We lose a little on every decision but make it up in volume.

rhhardin said...

The wide Latina.

traditionalguy said...

Free Speech supporters owe DaTrump a big award for reawakening boldly speaking truth in the face of a politically correctness epidemic that ruled the timid culture.

And many still
hate him for having the courage and skills to do it battle until
The fight was won.

Jose_K said...

"Selling babies" do that to you

Guildofcannonballs said...

Mirable dictu.

Guildofcannonballs said...

According to history I read CNN was right to say Randy Weaver and especially his wife ought been murdered earlier.


Why are white folks allowed to live at all?

I don't doubt they do, but why?

As ginger I always thought of my freckles and red hair as different from others: others view us "whites" the same I have taken to understanding.

There were, if the done memory done serve ya know, gingers like me in Taylor Swift's hit video, entitled "Shake It Off."

Guildofcannonballs said...

Well, I didn't assume, to my detriment, I would out my overtly hascist racism via fashions herewith: alas.

http://youtu.be/Q65KZIqay4E

Fen said...
This comment has been removed by the author.
Fen said...

"Are they nine of the best 100? Obviously not."

Because your people disqualified them over private comments they made about pubic hair on a coke can.

And then your people pretended the rape of 3 women and obstruction of justice and perjury as part of your side's coverup was "just about sex, MoveOn".

Are you seeing the common denominator here? Corruption. We don't have the nine best because you and yours are just as intellectually dishonest, morally bankrupt and corrupt as Hillary Clinton.

James Pawlak said...

To reach that goal, the jurist much be able to "lie like a trooper"---Or, a Clinton.

Douglas said...

It's too bad that Henry Friendly never made it to the Court. He was the finest appellate judge of his day. It's also too bad that Frank Easterbrook has never made it to the Court - he's the finest appellate judge sitting today.

Gahrie said...

This could be misunderstood to mean that I think the others lack the necessary paper credentials, of which the most important are graduating from a law school and passing the bar exam

While there is an obvious need for some of the Justices to be trained in the law, there is no reason, statutory or otherwise, why all of need to be. I personally would like to see people from other walks of life, with experiences other than attending an elite college and then Harvard or Yale Law. Perhaps a mathematician or even a plumber. You don't have to attend an elite law school to be rational and a clear thinker. (In fact given recent history, I think it probably helps if you don't.)

Chief Justice Roberts Harvard Harvard Law
Justice Kennedy Stanford Harvard Law
Justice Thomas College of the Holy Cross Yale Law
Justice GinsBurg Cornell Harvard Law
Justice Breyer Stanford Harvard Law
Justice Alito Princeton Yale Law
Justice Sotomayor Princeton Yale Law
Justice Kagan Princeton Harvard Law

Do we really want this type of insular elite controlling one of the three branches of government?

Iapetus said...

Tonight I was reading an interview with Posner that appeared in the January-February 2016 issue of Harvard Magazine and came across his explanation as to why he disagreed with a majority decision of the Seventh Circuit not to reconsider as a full court a decision that upheld Wisconsin's voter ID-law. It read in part: "There is evidence both that voter impersonation fraud is extremely rare and that photo ID requirements for voting, especially of the strict variety found in Wisconsin, are likely to discourage voting. This implies that the next effect of such requirements is to impede voting by people easily discouraged from voting, most of whom probably lean Democratic."

Extremely rare? In Chicago? I'm gobsmacked anyone would claim this. In the interview he clearly prides himself for what he calls a pragmatic approach of exploring legal issues beyond the bounds of the courtroom to "get at the truth." I'd say he should walk around Chicago and see for himself how much voting fraud takes place...and has always taken place. In any event, his point is not a law argument, it's a cost-benefit analysis. As a judge, shouldn't he stick to the legal issue of whether the Constitution permits the state to require a voter to identify himself and leave the analysis of costs and benefits to the legislative branch of government?

HT said...

You lost me at "Judge Posner."

Martin said...

Someone needs to advise Judge Posner of the First Rule of Holes: When you find yourself at the bottom of one, stop digging.

Or, just go ahead and insult the Presidents who nominated and the Senators who voted to confirm Kennedy, Scalia, Thomas, Roberts, Alito, Sotomayor, and Kagan.

btb, as he points out with respect to Justice Jackson, a law degree is not a required credential. In fact, any law school at all, or even membership in the bar is not required. Article III establishes NO requirement other than the agreement of the President and the Senate.

aritai said...

Wrong question. Who do you think the top ten list of non-jurists should be appointed to the supreme court? Given judge Posner's general disgust with the state of Justice in the U.S. I'd wager he'd welcome a change, who'd make changes. As he would have had he been appointed if he wasn't so radical, and old.

aritai said...

Walk north of the Dirksen building to the standard oil club, go to the buffet on the second iirc floor. he'll be sitting eating a light lunch up near the front. He's always happy to learn something new, a new perspective how something works. Asks good questions. And never forgets. He knows very well how we get what we reward, not what we want, even fervently believe we want and will achieve, and he's truly and deeply disgusted with the U.S. justice system where we reward plea bargains rather than cases one in front of a jury with a human victim who suffered real harm, and a witness or overwhelming circumstantial evidence. A jury denied is justice denied in his book. Else we reward frightening defendents with boxes of paper records, with selcom a human harmed in view. We'll have lost a great American and real intellect when he's gone.

Lloyd W. Robertson said...

Addams Family Values: Uncle Fester has been captured, physically and spiritually, by his wife Debbie. This has caused emotional dysfunction in the Addams household. Baby Pubert is pink, light-haired and glowing, instead of having the sallow, Halloween look that the Addams all associate with good health.

Grandma, who comes closest in the family to being a witch, has tried various charms and potions, but nothing has worked.

Grandma (Morticia’s mother): Unless Fester comes back, we're talking dimples.

Gomez: Not in this house.

Grandma: He could stay this way for years. Forever. He could become...

a lawyer...

Gomez: I won't listen!

Grandma: An orthodontist...

Morticia: Mama, stop!

Grandma: President.

[Baby Pubert Laughs]

Morticia: Please! I beg you!

Gomez: Take me!

The joke of the Addams Family is funniest when it isn't just good=evil, evil=good, but that many noble things like love, risk-taking, and possibly wisdom, are on the dark side. Becoming President probably requires that one be a weak, sellout kind of person.