JB

Responding to my suggestion that President Bush should nominate Richard Posner as Chief Justice, Juan Non-Volokh writes:

My question for Balkin is this: If he wants a "truly Supreme Court," should Bork have been confirmed? If not, why is Posner acceptable? (And if the answer is: Posner's less conservative, then what does that tell us?)

Juan is right that Posner is more politically palatable to me than Bork ever was. He is a secular libertarian with a very independent streak, and in the long run, likely to take the law in better directions (from my perspective at any rate) than, say, a dogmatic religious and social conservative would. So Juan is correct that my notion of who is acceptable (given who the President is) cannot be divorced from pragmatic considerations and predictions about what a nominee would likely do once on the bench. In this sense, my criteria of acceptability are multiple, rather than unitary.

But I also think Juan misunderstands the claim I am making about quality. I think he is setting the bar far too low if he thinks that Bork is in the same category as Posner. Posner is not just another smart legal academic. There are plenty of those around. He’s a central figure in several of the most important current debates in legal scholarship all the while holding down a regular job as a federal judge.

Let me be clear: My argument *isn’t* Juan’s argument, that one should support smart academics on the federal bench regardless of their ideology. I don’t believe that for a second. I reject the argument. Very smart academics are a dime a dozen. Some of them will turn out to be good judges, and some of them will turn out to be much less good. My argument is that under the present straitened circumstances, Bush should nominate someone of the very highest quality. As I said in my previous post, “Appointing [Posner] to the bench in the midst of the terrible controversies that have overtaken the judicial appointments process would send a good and healthy message, a little bit like Herbert Hoover's appointment of Benjamin Cardozo near the end of Cardozo's judicial career. Regardless of ideology, this is a person of the highest quality that people can respect.”

Now when I say very highest quality, I mean very highest quality. Lots of people are smart, and have done impressive things. Not many people can be mentioned in the same breath as Cardozo. I certainly don’t think that Bork can. Indeed, I don’t think that either Scalia or Breyer, two former academics currently on the Supreme Court, can either. Neither of them have achievements even close to Posner’s. Almost by definition, there are very few people of the very highest caliber available in any generation. (By the way, I think it is telling that I think of Bork, Scalia, and Breyer as being former academics. I still think of Posner as being an academic, even though he has been on the federal bench for twenty years.)

I actually don’t think that Bork was an appointment of the very highest quality. Bork is a smart fellow. He was a member of my faculty for many years, and my general (albeit obviously biased) estimation is that the Yale Law School does a pretty good job of judging legal talent. But he is simply not in Posner’s league. No one could have said of Bork in 1987 that he was the most important legal thinker of his generation. Unlike Posner, he essentially gave up academic writing when he joined the D.C. Circuit, and when he was at Yale there were plenty of other people in the legal academy as good as or better than him. When President Reagan nominated him Bork was quite famous for a lot of things he did in government service (can you say Saturday Night Massacre?) but in purely academic terms, his reputation rested largely on a single book, the Antitrust Paradox. He also wrote a famous law review article, Neutral Principles and Some First Amendment Problems, published in Indiana Law Review in 1971, which sets out his views on constitutional theory. It is one of the most cited law review articles of all time, in large part because it serves as a convenient foil, a symbol of positions that lots of people disagree with. It is, I’m sorry to say, not really a very good article; it takes a number of untenable positions about freedom of speech, and Bork recanted significant portions of it at his nomination hearings. His later writings after he left the bench have become increasingly shrill and polemical. That may be due in part to the trauma of the appointment battle. Even so, there is no way that one could compare Bork’s intellectual output over the past twenty-five years (or before, for that matter) with Posner’s. Bork has written, I believe, two books since 1987. Posner has written about twenty, on a vast array of different subjects, all the while holding down a full time job on the federal bench, and writing opinions of very high quality. It’s not that Posner is ever so slightly more impressive. The comparison isn’t even close.

My views about Antonin Scalia are very much the same, by the way. Smart man, excellent writer, much smarter than the average judge, but not even the most important legal thinker on the Chicago law faculty when he was nominated to the federal bench. Stephen Breyer did impressive work on regulation, and a great article on intellectual property when he was at Harvard. But he was far from the most significant figure in the American legal academy (or even at the Harvard Law School) when he went on the bench. And while on the First Circuit, he found, like most judges, that being a federal judge was a full time job. What is remarkable about Posner is that he discovered that being a federal judge *didn’t* take up enough of his time. He kept on writing book after book, article after article. And what is even more remarkable is that lots of these books are quite good, even though he argues lots of things in them that just drive me up the wall.

Juan is right when he suggests that my views on who I would find to be an acceptable nominee by a Republican President like George W. Bush are colored by my own politics. But I think he underestimates Posner’s distinctive achievement and contributions by suggesting that Bork– or, for that matter, a whole host of other very smart academics-- would fall into the same category of excellence. There is a very real difference here, and we should acknowledge it.