February 03, 2006

Classifying Judge Posner

Responding to a comment by Kevin Drum, Professor Bainbridge has asserted that Judge Richard Posner of the 7th Circuit Court of Appeals is not a conservative. Now at one level I find classifying judges as "liberals" or "conservatives" to be a really silly enterprise as there's not just one strand of either belief, and often in their drive to make points commentators try far too hard to put round labels on square judges. I've written on the topic several times - see here and here - and Orin Ker has written on the topic, proposing that there are at least 7 types of conservatives. But at the same time there still is a certain utility in knowing how a judge is likely to approach the law - and that especially holds true for someone like Posner who's one of the most influential judges in the country. So I ask you gentle readers - what exactly IS Judge Posner? How would you classify him? I think in terms of the results he produces he leans to the right, most certainly on matters of commerce. Is that results-oriented approach to looking at him sufficient? What would you call him?

Posted by armand at February 3, 2006 12:45 PM | TrackBack | Posted to Law and the Courts


except in case of patent results-oriented judges -- {cough} scalia {cough} -- it's misleading to classify judges by result. a good, restrained appellate jurist should look to result only after he has considered the state of the law on the topic. a good judge, or just a consistent one -- thomas, for example, is far more consistent than scalia is or endeavors to be -- often is going to follow his jurisprudential convictions even where they lead to results perceived as inconsistent with broader ideological commitments (hence, for example, thomas's toeing the anti-federalist line on medical marijuana notwithstanding that he almost certainly shares scalia's contempt for hippies).

ultimately, i think posner is a pragmatist more than an identifiable conservative or liberal, as suggested by his recent article on the NSA surveillance revelation. therein, he criticizes the "aridly legal" approach both pro- and opponents of the surveillance in question have taken to the issue, and bemoans the lack of discussion "of the program's concrete value as a counterterrosim measure or of the inroads it has or has not made on liberty and privacy." this approach, of course, runs counter to my suggestions above, in defending a judge's prerogative to look beyond the "arid" legal questions and perform more nebulous balancing analyses to try to pin down the public good.

if, that is to say, republicans were right that a conservative jurist is a restrained jurist, than posner would sound in this article as an unapologetic liberal. but i see no cause to accept this corrupt terminology; conservative jurists generally show no more restraint than do liberal jurists, and so the answer lies elsewhere.

posner's law and economics approach appears to me to be an at least vaguely novel variation on old utilitarianism. utilitarianism being, as it is, a fairly difficult thing to find in discourse in a triumphally capitalist intellectual climate, it's just not fair to try to lump that in under the traditional conservative or liberal labels. i think, rather, we have in posner someone truly singular, a judge who would (and has, if not quite as successfully as he might have hoped) promulgate a wholly new jurisprudence that asks pragmatic questions within a methodology that puports to be objective.

the degree to which his method succeeds (his relative success in propagating his ideas is hard to dispute) is, of course, subject to dispute. but he has earned the right to be recognized as someone truly different. thus, i object to any attempt to assign him a conservative or liberal label, regardless of how one might map out the ideological ramifications of the results he has reached.

(btw, it was already happening to me, but in writing this post i find myself truly crushed to think that he will never be nominated by anyone to the Supreme Court. his intellect, in itsself, hearkens back to the greatest justices, and the big-picture cant of his thought, as well as his polymathy, would be a boon the likes of which the court probably sees only a couple of times per century. not because i agree with him, but because his acumen and his ability to balance theory and result so far exceed the recent run of justices. o'connor received both credit and criticism for never losing sight of the consequences for real people of her rulings, but the theoretical weaknesses she manifested (either due to simple intellectual deficiencies, or more probably because she elevated result and comity over intellectual consistency) often were overlooked. i think posner would be o'connor without the sloppiness, and would single-handedly introduce some very interesting ideas to american law, as he already has to the legal academy. it's our loss that he won't have that chance.)

Posted by: Moon at February 3, 2006 01:59 PM | PERMALINK

I agree with Moon - Posner is best classified as pragmatist (which is how he classifies himself). But I also think that being a pragmatist does make him somewhat results oriented. He's trying to chose the "fairest" outcome, and being the Realist (I'm using Realist in the legal philosophy connotation), he realizes that law is indeterminate and he had chose the result that he wants. But to call him a liberal or a conservative would imply that he has some underlying agenda that I don't believe he does. I've read many of his opinions and articles and I believe he tries to look at cases on their own as they come before him.

As, I think his professed law and economics is far too indeterminate to be taken too seriously as his primary motivation (read Robert Dworkin "Is Wealth a Value" if you are interested in this). Of course, maybe you should not be listening to me on this one, considering my grade in Legal Philosophy...

Posted by: ryan at February 3, 2006 02:13 PM | PERMALINK

btw, for those of you interested in joining me, i'm going to be reading, per bainbridge's reference, the Ernest Young article mentioned, Rediscovering Conservatism, Burkean Political Theory and Constitutional Interpretation, 72 N.C. L. Rev. 619 (1994). those of you who would like to join me but lack access to westlaw or other avenues to get the article, drop me an email at moonoverpittsburgh [at] gmail [dot] com and i'll pass on my electronic copy.

Posted by: moon at February 3, 2006 03:38 PM | PERMALINK

I get where you are coming from, and I think there's definitely something to the Posner/O'Connor comparison on the pragmatism front.

But given that both seem to see a great need for prgamatism in the law (as opposed to "airily legal" strict requirements I guess), if you are going to be "pragmatic" in a relative conservative political climate - isn't that going to generally put you down as a "conservative" more often than not when it comes to results, even if that's not necessarily your aim? I mean from what I've read on him on Bush v. Gore and the current NSA wiretapping stuff there does some to be that consequence of his work. Though of course it's also possible that in areas where things have moved a little to the left that he'd be open to reflecting opinion there too (as in upholding more reproductive choice freedoms - though I read that book of his on Law and Sex, I forget the title, and I have less faith in his jurisprudence protecting gays, but of course in that arena public opinion hasn't moved as far).

I guess what gets me about Bainbridge's post is that while he's certainly not a Clarence Thomas conservative, the way he approaches the law will quite often lead to results that self-identified conservatives will like in most areas. And it's probably no coincidence that Reagan appointed him to the bench. So he still strikes me as a judge many conservatives would think of as supporting conservative principles and producing conservative rulings, whether or not his appoach to jurisprudence is something that would be approved of by Russell Kirk. So whether or no he's conservative - i doesn't strike me as inaccurate to say that both Posner and his approach to the law tend to be conservative-friendly.

Posted by: Armand at February 3, 2006 03:38 PM | PERMALINK

Oh, and in the too bad that Bush didn't nominate THAT guy instead of Alito b/c he's just so smart and interesting and provocative and would add a lot to our understanding of the law (even if the consequences of it would sometimes be icky and much worse b/c of the judge's right-wing inclinations), I still think it's too bad that Alex Kozinski didn't get the Alito seat. I find him more interesting than Posner. Of course Kozinski is only 55 so it's not impossible he might not yet end up on the Court. Though of course I certainly hope Stevens, Souter and Ginsburg and hey, at this point even Kennedy, are still on the Court in 2009. Maybe Kozinski could get the nod if Scalia were to suddenly decide to retire after the 2006-2007 term.

Posted by: Armand at February 3, 2006 03:45 PM | PERMALINK

kozinski is a worthy judge and very very smart, but i'm not sure he's as philosophical as posner, and that's what leads me to think of him as a potentially icky but salutary choice for the court.

perhaps, armand, you could elaborate on why you think posnerian pragmatism (granting that heuristic in itself) leads to conservative results. i don't follow his jurisprudence closely enough to know whether that's how his decisions line up in the aggregate, but i'll even grant you that arguendo. what i'm not getting is that you seem to be saying pragmatism, for some reason pertaining to legal climate, leads inexorably to conservative results. i'm not sure i follow.

Posted by: moon at February 4, 2006 04:48 PM | PERMALINK

"you seem to be saying pragmatism, for some reason pertaining to legal climate, leads inexorably to conservative results"

What I mean is that if the dominant rules, questions, and discourses of the day (in terms of policy debates, philosophical beliefs, perceptions of legitimate actions, conceptions of the role of government, etc.) are those that are more likely to lead to "conservative" rulings just b/c of how we frame questions and judge what are and are not appropriate responses, then pragmatism is more likely to lead to conservative outcomes. And in the current era, it strikes me that a lot of the dominant approaches to politics and the law point that way.

Now of course not every era is like that. If it were 1946 I can see Posner producing more "liberal" results. But the country's belief systems relating to politics, and matters pertaining to how the law is understood and practiced now as opposed to then - well, lots of things have shifted in ways that are more likely to produce conservative results.

Or I guess what I'm saying is that pragmatism is likely to produce different results depending on what the dominant philosophical and legal understandings of the day are, and I think that today that approach will more often than not point in "conservative" directions - certainly not to the degree that a Pat Robertson might like, but to a degree than the counsels of ExxonMobil might not mind too much.

Posted by: Armand at February 5, 2006 12:46 PM | PERMALINK
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