Unless a Supreme Court nomination falls from the sky, federal judges are rarely evaluated by cool-eyed critics. And so my heart leapt the other day when Federal Express brought a 126-page report from the Chicago Council of Lawyers reviewing the performances of the fifteen judges on the Seventh Circuit Court of Appeals. But the lawyers have an ax to grind. Their oddest conclusion is that Richard Posner and Frank Easterbrook, two of the most celebrated judges in the country, are in fact two of the least professional judges on the court. Both men are taken to task for displaying "a contempt for attorneys, and to some extent, the litigants as well." In the wounded tones of an unloved child, the report complains that "demeaning criticisms of well-intentioned counsel who are doing the best they can ... is not constructive." And it ventures that "some of Chief Judge Posner's weaknesses . .. might stem from his lack of a background in the practice of law." I've admired Posner's writing for years and, screwing up my courage, asked to meet him during a recent visit to Chicago; when he invited me to stop by his house on a snowy Saturday morning, I felt as nervous as the Council of Lawyers sounded.
The brick townhouse is a few blocks from the faculty club on the University of Chicago campus; and the tall, balding man who answered the door, in his tan corduroys and gray crewneck, looked like a friendly antitrust professor. But then he sat on the flowered couch in his living room, underneath a set of Leonardo reproductions and near an upright piano displaying a sentimental ballad called "Am I Alone?," and began to talk. In a calm, surprisingly high- pitched voice punctuated by an injudicious giggle, he continued to talk for two hours. And as he talked, to my embarrassment, images of Oliver Wendell Holmes came helplessly to mind. Posner's ability to idle away a morning in pleasant chatter while sustaining his relentless productivity--a book every other year, on topics from law and literature to sex and reason--is part of his mystery. It's not clear how he produces seventy-seven judicial opinions each year (the national average is twenty-eight) in half the time other judges require; but he works most evenings, from dinner until midnight, and then takes a moonlight constitutional with Mrs. Posner around Hyde Park.
He shares Holmes's appetite for gossip; but his cheerful contempt for dimmer judges, including several of the worthies on the Supreme Court, seems less a mark of arrogance than of candor. "I say outright what other judges prefer to keep under their hat," he told the Chicago Council of Lawyers. " That is why my opinions strike some lawyers as being outside the professional groove." Using the same methodology Posner used in his study of the reputation of Benjamin Cardozo, the Lawyer's Council tabulated the number of times other circuits have cited Posner's opinions. By this standard, Posner is easily the most influential judge in the nation, averaging 273 citations each year, or more than four times the national average of sixty-six citations. In a perfectly meritocratic world, a delegation of senators from both parties would fly to Chicago with a signed Supreme Court commission and lay it respectfully at Posner's feet.
But in the middle of a star-struck swoon, I remembered a reservation. It's hard to avoid the suspicion, after reading and talking to Posner, that he does not believe very wholeheartedly in law. He prefers the "cynical acid" of empirical analysis to abstractions about legal rules and legal rights. (Posner notes that Holmes, too, believed in policy analysis, but lacked the patience to do it.) The Chicago Council of Lawyers puts it mildly when it calls Posner a "legal realist who gives little weight to history and is famously derisive of original intent." (See Posner's "What Am I, A Potted Plant?" tnr, September 28, 1987.) In The Problems of Jurisprudence (1990) Posner confesses that "political factors, and sometimes social visions, are decisive in the most difficult cases"; and he endorses Holmes's dark aphorism: "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law."
Critics and admirers have noted the affinities between Posner's no-nonsense pragmatism and the radical skepticism of the critical legal studies movement, although Posner disavows the "left-of-center politics" characteristic of the crits. But there's something exhilarating and unsettling about the image of Posner, presiding by day over the Seventh Circuit and squirreling away hours at night to pound out his subversive books on the indeterminacy of law. When I asked Posner about the irony, he chuckled and then demurred, with surprising tentativeness. Judges are restrained by law in two senses, he said. They have to be impartial, in that they can't decide even close cases on the basis of personal sympathy for the parties; and unlike moral philosophers, they have to try, for reasons of efficiency if nothing else, to maintain a legal fabric that includes considerations of precedent, legislative authority and the facts of each case. (Posner stressed, however, that the gray area where precedents give no clear answers is wider for him than for other judges. ) On this score, Posner's next book may not be entirely reassuring. The working title is Overcoming Law.
As noon approached, Posner put on his ski hat and sunglasses and walked me over to the faculty club, where I met his controversial colleague, Frank Easterbrook. Although he joins forces with Posner in most cases (and was Posner's partner in an antitrust consulting firm in the 1970s), Easterbrook embraces strict construction and constitutional literalism with the same fervor that Posner rejects them. "Judge Easterbrook communicates a lack of appreciation of the litigants as real human beings with real-life problems," the lawyers pout. With his bristling beard, blustery manner and blue denim Walt Disney World work shirt, Easterbrook is indeed a more frightening character than Posner. But Easterbrook's famous temper pales before the tantrums of Learned Hand, who once became so exercised during an oral argument that he hurled his briefs across the bench. Hand, of course, would never have made it to the bench if he had been subject to the "merit selection" checklist recommended by the Chicago Council of Lawyers: " litigation experience in complex matters" (Hand was a disaster as a litigator) ; "administrative skills;" "increased racial and gender diversity;" and so forth. And Posner himself was lucky to get by. When his nomination was announced in 1981, the American Bar Association grudgingly rated him " qualified."
Jeffrey Rosen is the legal affairs editor at The New Republic.
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.