Balkinization  

Thursday, June 12, 2003

JB

Posner for Chief Justice

The Bush Administration is surely not going to ask me for advice about judicial appointments, but if they are determined to appoint a conservative Republican to replace Chief Justice Rehnquist if and when he retires, I can tell you who right now I would be in favor of, even though I don't agree with him much at all:

Richard Posner.

For those of you who are unfamiliar with contemporary legal scholarship, Posner, who joined the 7th circuit in the early 1980's, is one of the most important legal scholars of his generation, and has written an endless supply of articles and books on virtually every legal subject imaginable, all the while continuing to produce a steady stream of extremely well written appellate opinions, which have made him perhaps the most influential lower court judge living today. He is a man of supreme intelligence, boundless energy and enormous learning. It is impossible for me to list the number of contributions he has made to legal scholarship. The quality of his accomplishments is such that he would grace the Court, and not the other way around. It would be fitting too, for him to be able to finally take a seat on the same court as his acknowledged idol and role model, Oliver Wendell Holmes, Jr.

I do not think that there is much chance that Posner will be nominated to the Supreme Court. He is probably now considered too old. Moreover, he has taken many controversial positions and said many controversial things in his career that will discomfit not only people on the left-- whom he delights in tweaking-- but also on the right as well. He is probably the most famous exponent of the economic approach to law, which leads him to take stands that are anathema to many liberals. He also has strongly libertarian and secular sensibilities, which will surely not endear him to social conservatives. And he takes great delight in saying things deliberately designed to shock others, which will cause enormous difficulties for any one who would try to be his political handler during confirmation hearings.

But he is a great legal thinker, and a great judge. When Orrin Hatch and other folks go on and on about how great a legal mind some of these Bush nominees possess I just have to laugh. That really cheapens the term. These guys may be ok lawyers, but they are not great legal thinkers. Posner, on the other hand, is a great legal thinker. If you want a truly Supreme Court you should put people of his caliber and quality on it. Appointing him 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. And if the Democrats knew what was good for them, they would support an appointment for Posner, because there's nobody Bush would be likely to appoint who would even be close to doing a better job.

It'll never happen.



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