THE VOICE OF THE SEVENTH CIRCUIT COURT OF APPEALS

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Richard Posner, by William Domnarski (Oxford University Press, New York, NY, 2016, 289 pages).

Book Review by Dennis Moore

January 10, 2017 (San Diego) - Judge Richard Posner is one of the great legal minds of our age, on par with such generation-defining judges as Oliver Wendell Holmes, Learned Hand, and Henry Friendly. A judge on the U.S. Court of Appeals for the Seventh Circuit and the principal champion of the enormously influential law and economics movement, Posner is also an archetypal public intellectual: he writes provocative, best-selling books, receives frequent media attention, and often engages in high-profile policy debates. He is also a member of an increasingly rare breed – judges who write their own opinions rather than delegating the work to clerks. We therefore have unusually direct access to the workings of his mind and his judicial philosophy.

In the first full-length biographical treatment of Richard Posner, William Domnarski examines the life experience, personality, academic career, jurisprudence, and professional relationships of his subject with depth and clarity. The book benefits from Domnarski’s access to Posner himself and to Posner’s extensive archive at the University of Chicago. In addition, Domnarski interviewed and corresponded with more than two hundred people Posner has known, worked with, or gone to school with over the course of his career, from grade school to present day. They include his fellow former members of the Harvard Law Review, colleagues at the University of Chicago, and former law clerks from Posner’s more than thirty years on the United States Court of Appeals.

Accessible and authoritative, Richard Posner is also a fascinating intellectual biography of a unique judge who, despite never having sat on the Supreme Court, has nevertheless dominated the way law is understood in contemporary America.

William Domnarski has been a lawyer and writer for 30 years. His previous books include Federal Judges Revealed and The Great Justices, 1941-54. Domnarski indicates in regard to Posner that law was actually the default career he made coming out of college at Yale, where he had been a dazzlingly successful English major. If anything, Posner seemed destined for a literary life. The core of his life as it has unfolded has been such a literary life, even within a career in the law, so that he has always been a writer first and a lawyer second.

Domnarski provides family history on Posner, which is relevant, by indicating that the world of his parents as Eastern European Jews starting out in New York City at the turn of the twentieth century was the world of Irving Howe’s magisterial World of Our Fathers (1977). For these new immigrants it was marked by hardship, conflicted loyalties, assimilation, ambition, and success.

Posner’s parents had had eventful lives by the time he was born. His father had grown up in poverty in the Lower East Side of New York. Politically he was a radical and a member of the Communist Party, something that got in the way when he was a student at City College of New York.

Domnarski points out in Richard Posner that in rather dramatic moves on the bench that seem to bring his entire career into focus, Posner has taken to the offensive to assert how he thinks law should work. One could easily say by reading this book that Richard Posner is an Appellate Court Judge iconoclast, or breaker of tradition, as well as rebel.

What is most profound in this book by Domnarski about Posner, which seems to shake the very fibre of appellate rules and procedures, is the author stating: “In the first move, Posner has in recent years often gone beyond the appellate record and beyond the briefs of the parties to conduct his own internet research. He is quite open about this research and has defended his practice in the face of critical commentary. He went even further in one recent case and conducted an experiment, decried by some of his colleagues, to test the facts asserted by the parties. As his colleagues pointed out, to go outside the record in this way is to breach a fundamental rule of appellate procedure.” This certainly would not be accepted out here in the 9th Circuit Court of Appeals!

What is most revealing and comes as a revelation in this book by Domnarski, is the seemingly adversarial relationship between Posner and Supreme Court Chief Justice John Roberts and the late Supreme Court Justice Antonin Scalia. Domnarski states: “In addition to what we have seen occurring in prior decades, Posner in the first four years of the decade moved in an unprecedented way to criticize the system in which he worked and to reshape it to make it more like what he thought it should be. We see this on several fronts.”

His piece on the Supreme Court and gun control, which closely examined the Heller case, is where he first lambasts Justice Scalia for his majority opinion, a decision he noted in a 2014 interview as one of the two worst Supreme Court decisions. He (Posner) had begun this opinion piece writing habit in 1987 with “What Am I? A Potted Plant,” his New Republic dissection and rejection of strict constructionism.

Domnarski further points out this criticism and seemingly adversarial relationship towards the Supreme Court, by stating: “Posner had his own kind of response to the Supreme Court in the 2010s. In unprecedented fashion Posner often and in a wide variety of publications – including his book The Behavior of Federal Judges, co-written with William Landes and Lee Epstein – leveled stinging criticism at the Supreme Court, both generally and at specific justices. He launches his attacks not just in academic writing, with its limited audience, but in the online magazine Slate, with its large audience. He writes that the opinions, almost all clerk-written, are well-written but much too long, with this length a function of the Justices having too much time on their hands because they have too few cases and too many law clerks.”

Domnarski points out in Richard Posner that serendipity had a role in the six books Posner wrote in the decade (2000) on national security and terrorism. He (Posner) had reviewed Alan Dershowitz’s book Why Terrorism Works: Understanding the Threat, Responding to the Challenge for the New Republic in 2002 and in particular praised it for recognizing what doctrinaire liberals could not – that the “scope of our civil liberties is not given in stone, but instead represents the point of balance between public safety and personal liberty.”

Judge Posner has weighed in on a number of high profile appeals in the Seventh Circuit, including U.S. v. Blagojevich and Exodus Refugee Immigration, Inc., v. Michael R. Pence, in his official capacity as Governor of Indiana, et al. As a matter of fact, an article in Above the Law, phrases Posner’s opinion against Vice-President elect Mike Pence as; “Judge Posner Benchslaps Mike Pence On Syrian Refugee Opposition.” The article in Above the Law further states: “This is not what Governor Mike Pence (R-Indiana) needed the day before his vice-presidential debate with Senator Tim Kaine (D-Virginia).”

The article in Above the Law also stated in Posner’s opinion against Pence: “The Trump campaign likes to claim that the judges who rules against its interests are biased, but that particular excuse probably won’t wash here. Judge Posner’s opinion was joined by two conservative legal stalwarts, Judge Frank Easterbrook and Judge Diane Sykes – yes, the same Judge Sykes who’s on Trump’s Supreme Court shortlist.”

Posner’s opinion (No. 16-1509) against Governor Mike Pence, decided October 3, 2016, specifically states: “He argues that the policy of excluding Syrian refugees is based not on nationality and thus is not discriminatory, but is based solely on the threat he thinks they pose to the safety of residents of Indiana. But that’s the equivalent of his saying (not that he does say) that he wants to forbid black people to settle in Indiana not because they’re black but because he’s afraid of them, and since race is therefore not his motive he isn’t discriminating. But that of course would be racial discrimination, just as his targeting Syrian refugees is discrimination on the basis of nationality.” Read opinion here.

The author Domnarski has written a well-documented and timely book – specifically his reference to Championing Patent law Reform. Domnarski states: “As a complement of sorts to Posner’s criticism of the judiciary, the Supreme Court, and Justice Scalia, Posner seemingly acted on his complaint that patent law needed reforming, first by implementing drastic changes in existing patent law in a case he was presiding over as a district court judge and then undertaking something of a media blitz raising awareness of the problems he saw with patent law and making a number of proposals for change along the way.”

Posner drew attention to himself and his views on patent litigation when as a trial judge in 2012 sitting by designation he presided over a patent case involving Apple and Google-owned Motorola and smartphone patents they respectively owned. The case ended suddenly when just prior to trial Posner dismissed it with prejudice based on the inability of each side to prove damages. The absence of damages also precluded Motorola from seeking injunctive relief against Apple, the author reasoned.

In a related case, decided by the Supreme Court on December 6, 2016, the court ruled in a case involving smartphone makers Apple and Samsung. The Supreme Court ruled that Samsung may not owe Apple the full profits from smartphones that copied iPhone design features could further expand the market for the popular devices. Samsung’s victory over Apple reversed a string of setbacks besieging the company fighting its smartphone foe. The battle between the tech giants represented the first design patent case to reach the high court in more than a century, which from reading Domnarski’s assessment of Posner, the 7th Circuit Judge would have taken delight and particular interest in.

I actually have intimate and personal insight into the Seventh Circuit Court of Appeals and Richard Posner, as I once had an appeal before this court in Chicago; Moore v. Carlucci, 893 F.2d 1337 (7th Cir. 1989).

This is a fascinating book that gives insight on the inner workings of our judicial system, and the writings from one of the stalwarts of the Court gives particular clarity and insight. Read writings here.

Dennis Moore has been the Associate Editor of the East County Magazine in San Diego and the book review editor of SDWriteway, an online newsletter for writers in San Diego that has partnered with the East County Magazine, as well as a freelance contributor to EURweb based out of Los Angeles. He is also the author of a book about Chicago politics; “The City That Works: Power, Politics and Corruption in Chicago.” Mr. Moore can be contacted at contractsagency@gmail.com or you can follow him on Twitter at: @DennisMoore8.

Comments

Posner and Domnarski

I imagine, just from reading this review, that this book is incredibly interesting. Although I don't have a lot of knowledge concerning the mechanisms of the Supreme Court or district court judges, I believe I would find this book very interesting.

Senator Al Franken grills Judge Gorsuch on trucking case!

Senator Al Franken pressed Judge Neil Gorsuch on the "Case of the Frozen Trucker," where Gorsuch ruled in favor of a company that fired an employee who abandoned his truck in freezing temperatures. I would have much rathered Judge Richard Posner to have been in the position of Judge Neil Gorsuch for the position of Supreme Court Justice.

Richard Posner, the Voice of the 7th Circuit

Carole, you are right, this book is really interesting for so many reasons, ecpecially considering our current political climate and who might be the next Justice on the Supreme Court.