The Man Behind the Robes — A Q&A with Richard Posner
I myself am a counterrevolutionary. I am not eager to be sent to the countryside to do farm work while wearing a dunce cap. (2009)
I’m much less reactionary than I used to be. (2014) – Richard Posner
This is the third in a series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, and the second one here. (My interest in Judge Posner goes back almost a quarter century. See Ronald Collins & David O’Brien, “Gauging Reputations, National Law Journal, pp. 13-14, April 1, 1991 (commenting on Posner’s Cardozo book).)
The measure of a man is gauged in different ways. For some, it moves along a spectrum of social approval. For others, it is personal perfection. For a few, it is mastery — that ability to excel in one’s life calling. And then there are those who take public service seriously. For yet others, it is legacy – that long story after the life story. In that journey, whatever one’s direction and destination, a few are bold into the fray, others calculating into the conflict, and still others are quiet into the clash. How we measure them depends on where we stand, how we judge the end game, and just how impartial we are. Then again, how we judge someone may reveal more about us than the person being judged. Bear all that in mind as you read the words of the man — an atypical man — who is the focus of this and the other interviews.
How, then, to measure Richard Posner? It is not an easy task; he is complex. Because of that it is easy to misjudge him. Up close, Posner is unusual. For one thing, his candor can be unnerving. Thus, his personality in one-on-one situations can be odd, unless one is attuned to him, which requires being on his psychological wavelength. For another thing, he is somewhat unconstrained by many social mores. He is, for better or worse, a take-me-as-I-am sort of individual. But give him distance from the province of personality (conventionally defined), and he works well in the world of rules and reasons. That is his domain. In that realm, he appreciates informed judgment and delights in being daring. True to his cerebral bent, he loves to be rational (tag it Aristotelian eros), even if it leaves him the odd man out. In that sense, there is something peculiarly fascinating about him – that rara avis who seizes our attention even when we tend to turn away.
What follows are the first in a series of questions I posed to the Judge about his life and life views. (Note: Some links will open in Firefox or Chrome but not in Safari.)
Question: Were you born Richard Allen Posner, or was Allen your first name? [Hat tip to Professor Peter Irons.]
Posner: That’s true [about being named Allen]. But my parents always called me ‘Dick.'” [RC: The Judge has his law clerks address him as his parents did.]
Question: You were exceptionally revealing in the New Yorker profile that Larissa MacFarquhar did back in 2001 – the story in which, among other things, you described yourself as “an imperfectly house-broken pet.” You also compared yourself to your late Dinah, “playfulbut with a streak of cruelty.” (Dinah has since died.) Two questions:
- Why? What prompted such unconventional candor?
- Do you have any regrets?
- Larissa was very skillful at extracting unguarded comments from me. She is an excellent reporter. [RC: In a 2003 interview with Howard Bashman, Judge Posner said: “MacFarquhar. . . exaggerated my role in the law and economics movement, but that’s fine!”]
Question: In what respects are you most like and unlike your parents?
Posner: I share my mother’s love of literature, and my parents’ lack of religiosity (I believe the word “God” was never mentioned in our home). My father [Max] was introverted, like me. I didn’t share my parents’ politics, which were extremely left-wing. It’s unrealistic to think me much like my parents, as they were born in 1900 and 1901 respectively, into central European families with no money who immigrated shortly afterward to the United States. There is no comparison to my situation at and after birth, by which time (1939) my parents were prosperous, educated, and completely assimilated Americans.
Question: You were an English major at Yale College and did your senior thesis under Cleanth Brooks (the famed figure of literary criticism). Your thesis was on William Butler Yeats’s late poetry. Why English, why Yeats? And tell us a little bit more about you senior thesis – its title and scope.
Posner: My mother [Blanche] was a high school English teacher and started me off on literature when I was an infant — she read Homer and Shakespeare to me from a very early age. I majored in English at Yale because I was already steeped in literature and Yale had the best English department in the country. I discovered Yeats’ poetry and loved it and still do. I don’t recall the title of my senior thesis. I do recall the principal theme, which was that his poetry was “reflexive,” in the sense that much of it, I thought, despite its ostensible subject matter, was about poetry itself, which after all he new best.
Question: What was your draft status? How did you navigate the whole military service matter?
Posner: Deferment was automatic in my day (before the Vietnam War heated up) while one was a student. My first job after graduating from law school was as a law clerk at the Supreme Court. Justice Brennan, my boss, wrote a letter to my draft board before I started the clerkship asking it to defer me for the clerkship, which it did (it didn’t have to). During my clerkship year my wife had our first baby, and at the time (1963) that was an automatic deferment. I never heard further from anyone about the draft.
Question: When you were the president of the Harvard Law Review (vol. 75, 1961-62), several prominent persons (e.g., Alexander Bickel, Felix Frankfurter, and Henry Friendly) published on your watch. Do you have any memorable stories you might share with us?
Posner: Bickel was not a Harvard Law School professor (Yale instead), and I broke with tradition in asking him to write the Foreword to the Supreme Court section in the first issue.
I also got into some trouble with the faculty over publishing a very critical review by Frederick Bernays Wiener of an excellent revision [of Wigmore’s evidence treatise] by John T. McNaughton, one of the law school’s professors (later a key aide to Robert McNamara in the Vietnam War).
Question: Were there any professors you had at Harvard who stood out in your mind? If so, who were they and why do you remember them?
Posner: There were a number of excellent professors: in no particular order they were Paul Bator, John Mansfield, Abraham Kaplan, Derek Bok, Donald Turner, Walter Bart Leach, and (probably the best) John Dawson. I may have forgotten some others who were good. Turner’s field was antitrust, and he had a Ph.D. in economics from Harvard. We were friendly. To some extent, he sparked my interest in economic analysis of law.
Question: How did Paul Freund come to select you for a clerkship with Brennan?
Posner: He was an informal adviser to the law review so I got to know him pretty well, though I never had him in class. I was the president of the law review and the highest-ranking student by grades, so I was a natural pick for a Supreme Court clerkship. I didn’t apply—he just picked me. I actually wasn’t particularly interested in clerking.
Question: You worked with Thurgood Marshall while he was Solicitor General. What was your opinion of Mr. Marshall back then?
Posner on Thurgood Marshall
He was a good boss in the sense that he backed the staff, which of course was all I cared about, but had rather little interest in the job. It was just a stepping-stone job. He had been a great trial lawyer, and I don’t think appellate law interested him particularly. Before becoming SG he was on the Second Circuit briefly, and after he was S.G. he, of course, was on the Supreme Court. I don’t think any of those jobs drew on his strengths, which as I say was as a trial lawyer.
Question: While in the S.G.’s Office you argued nine cases before the Supreme Court. Do any of those case stand out in your mind? Are you especially proud of your performance in any of them?
Question: You were general counsel on President Johnson’s Task Force on Communications Policy. How did that come about and what sort of things did you do in that capacity?
Posner: I probably was asked by the staff director, Alan Novak, but I don’t actually remember. My title of “general counsel” had no meaning. The task force had a small staff. I learned a lot of economics from our economist staff member, Leland Johnson, a very smart economist from RAND. I did most of the writing for the report. The report was influential in the deregulation movement, and also led to my being asked to do a good deal of consulting in telecommunication policy during my time as an academic.
Question: What is your sense of the 60s counter-culture?
Posner: I hated it; I still hate it.
Posner: Infantile, amateurish, at times violent, disruptive of colleges and universities — I could go on.
- At the time or thereabouts, what did you think of Charles Reich’s article “The New Property” (1964)?
- And what was your view of his The Greening of America (1970)?
- I don’t remember that article.
- [As to The Greening of America, here is how I would describe it:] idiocy by a rather pathetic idiot.
Question: Can you tell us a little about the vetting process re your nomination to the Seventh Circuit? What was it like?
Posner: Nothing comparable to what it would be today; altogether more casual. I was called by Bill Baxter, a friend and former Stanford colleague who was the head of the antitrust division for Reagan (this was the beginning of Reagan’s first term), who asked me whether I’d be interested in being appointed to the Seventh Circuit, and after some consideration I said yes. I later filled out a form, had a pro forma interview by the deputy attorney general, an interview by an ABA committee, a five-minute confirmation hearing. That was pretty much it.
Question: On Liberty, you have said, “is the best . . . statement of what I consider to be my own political philosophy . . . .” In brief, why is that so?
Posner: Did I say that? I don’t think I would say it today.
Question: Your full statement, circa 2003, was: “On Liberty is the best, as well as the best-known, statement of what I consider to be my own political philosophy (using political in a very broad sense, given Mill’s belief that public opinion is an even bigger threat to liberty than government is).” (There is more, and you can find it on page 197 of the Bromwich and Kateb edition of On Liberty.)
So, do you agree with your full statement as quoted? If not, say a few words about your own political philosophy and its main characteristics.
Posner: I don’t know what I meant.
- Being entirely candid, do you have any regrets about never having been selected to serve on the Supreme Court
- For your purposes, what are the greatest challenges and benefits of being a judge on a federal appellate court?
- In the 1980s, I would have liked to be appointed to the Supreme Court; I think that’s a natural reaction of a newly appointed federal court of appeals judge. But I was wrong. I’m sure I would have disliked being on the Supreme Court. It’s not a real Court. I don’t like its case mix. It’s also very difficult sitting with so many judges (court of appeals judges almost always sit on panels of just three judges.) And I wouldn’t have liked to live in Washington again (I had lived there for six years in the 1960s.
- Many of the cases are very interesting, colorful, often challenging, and I like to write. I very much enjoy both the oral arguments and writing judicial opinions; also the law clerks I hire, who are very smart.
Question: What other career might you have pursued if not one in law?
Posner: I toyed with the idea of becoming a professor of English literature. That would have been a really big mistake.
Question: What is your overall opinion of the New York Times? What do you see as its particular strengths and weaknesses?
Posner: Its editorials tend to be flaccid and mechanically liberal. But on the whole it’s an excellent newspaper.
I am a resolute nonreader of popular fiction, nonviewer of television, and non moviegoer. Richard Posner (1998)
- Do you still read poetry?
- Do you read fiction? If so, what sort of novels or short stories?
- Yes, though not too often. I’m too busy.
- I don’t read too much fiction any more. I have read most of what I would be likely to enjoy, often more than once. But I have in recent years branched out some, partly because of a course in law and literature that I teach with Martha Nussbaum of the University of Chicago law faculty. I have read in that connection a good deal of Southern fiction, also apocalyptic fiction, currently fiction of the British Empire. Recently, I’ve been rereading the excellent mystery novels of Raymond Chandler and Ross MacDonald.
Question: Below is a passage from Yeats’ 1920 poem The Second Coming.
Turning and turning in the widening gyre
The falcon cannot hear the falconer
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned.
The best lack all conviction, while the worst
Are full of passionate intensity
Say a few things, if you would, about what that passage means to you, or how it strikes you.
Posner: He’s talking about the violence, instability, and rise of extreme political groups in the wake of World War I. The last two lines “The best lack all conviction” are prophetic of the fascist and communist movements and the cataclysm that was World War II. It’s a fantastic poem, one of the greatest ever.
Joy is of the will which labours, which overcomes obstacles, which knows triumph. – W.B. Yeats (undated journal)
Question: What is your favorite Friedrich Nietzsche book?
Posner: The Genealogy of Morals (1897).
Question: What is it about that work that is so special for you?
Posner: It’s his key work, explaining his theory of how morality and particularly religion emerges from the efforts of the weak to hog-tie the strong (the natural rulers). The strong don’t need brains or cumulative intelligence; the weak do and achieve power by outsmarting the strong. An example is in Leviticus, where the best cuts of meat are reserved for the priests. Nietzsche is great.
Question: Are morals relative? And what are your views of relativism? Are you a relativist (or even a quasi-relativist)?
Posner: Obviously relative, differing from society to society.
Question: Have the writings of Carl Schmitt influenced your thought? If so, which of his works and why?
Posner: I haven’t read him for a long time. I know I found what I read of him very interesting, but I don’t remember it.
Question: You come across as somewhat of a solitary type. True?
Posner: I suppose.
Question: What time do you begin your workday and at what time do you end it? And how many days a week do you work?
Posner: I begin around 9 a.m., sometimes later, and end sometime between 11:00 and 11:30 p.m. I work seven days a week.
Question: Do you ever go away for a vacation?
Posner: No, not in recent years.
Posner: I like most classical music that was composed up until the middle of the twentieth century, ending, say, with Aaron Copland and Shostakovich. I like contemporary popular music a lot — Kelly Clarkson, Sara Bareilles, Taylor Swift, Adele, OneRepublic, Bruno Mars, etc.
Question: Which two or three persons would you list as among the greatest public intellectuals of your lifetime and why would you consider them so? Perhaps William Buckley, or Gore Vidal, or what about Susan Sontag, or some three others?
Posner: You’ve named three real losers. I wrote a book some years ago on public intellectuals. The book has long lists of them, based on number of references of different types. I suppose I would rank George Orwell number 1. There are many others.
Question: Which American women in law would you list as among the greatest of contemporary thinkers? And why?
Posner on a few of the Great Women Legal Thinkers
Catharine MacKinnon has probably been the most influential woman in law. Of course there are many other influential woman lawyers, of whom Ruth Ginsburg is probably the best known and most influential. Elizabeth Warren is another major female figure in law. There are a number of excellent woman judges, such as my colleague Diane Wood; in fact half the active judges on my court are women, and they are all excellent. I don’t notice any significant difference between male and female judges.
Question: What, in your opinion, has become of the Chicago School of Law and Economics? Has it fared well over time, or not?
Posner: It’s certainly fared well over time — it is now pretty orthodox, at least in microeconomics.
Question: Have you ever been overruled in case, which upon reflection, you thought the reversing Court had the better argument? If so, would you care to tell us the name of that case?
Posner: Judges don’t look back; at least I don’t.
Question: How do you select your law clerks? Tell us a little a little bit about the process? Do your law clerks begin the review process? What exactly is your involvement?
Posner: I just look at applications from a handful of the leading law schools. If I have a law clerk from the same school as a promising applicant, I ask that law clerk for an evaluation of the application. I rely heavily on evaluations from law professors whom I know. I interview a few applicants, but give little weight to interviews. The interviews are more for the benefit of the applicant. Usually I offer a clerkship to anyone I interview, and usually it’s accepted on the spot, although I make it emphatically clear to the applicant that I do not make exploding offers and there is no deadline for acceptance.
Question: What, if anything, that is important to you have you yet to accomplish?
Posner: I would like to see extensive reforms in law, along the lines I’ve advocated in books, articles, and judicial opinions. Success in those endeavors is a long time off. [RC: His answer continues immediately below]
The law is a very stodgy profession. I’m not optimistic about my ability to bring about significant change.
Question: Forgive me, but I did not ask you about your spouse (Charlene Posner) or your two sons (Kenneth and Eric). Is there anything you care to add on that score?
Posner: The only member of my family whom I discuss publicly is my cat.
Question: Okay, what’s so special about your cat? – that’s Dinah? She is the furry Gray Maine coon cat you posed with for a photo in the New Yorker Magazine. How do you interact with your feline?
Posner: Dinah, alas, died of old age some years ago. Our current cat, Pixie, is also a furry gray Maine Coon. She is beautiful and very intelligent, like her predecessors, but has the distinction of being the first actually to like me. Not that her predecessors disliked me; they were indifferent.
Question: Eleven years ago you told Howard Bashman that “at some point I will run out of steam.” So, how are you doing? Is there still much steam left in your stacks?
Posner: As long as my physical health holds up and senility holds off, I will continue to work as I have. I am one of those people who dread retirement. I hope I won’t overstay my welcome.
Question: In Aging and Old Age (1995) you wrote: “[A]s life draws to a close considerations of posthumous reputation loom larger in the rational individual’s utility function.”
Not that the Grim Reaper is lingering near your chamber, but do such considerations ever loom in your thoughts? Put another way, and to draw on a Holmesian allusion, has death plucked your ear? If so, share with us any considerations that may be lurking within you . . . like life after the Seventh Circuit.
Posner: I have absolutely no interest in my posthumous reputation, as death is oblivion (or so I believe), and so no one ever discovers what his or her posthumous reputation is.
Coming this Wednesday: The next in the “Posner on Posner” Q&A series is a set of some 50 questions posed to Judge Posner by 24 noted legal figures (a journalist, judges, and law professors).