@Posner_Thoughts - The Verified Account: A Review of Judge Posner’s The Federal Judiciary

This article originally appeared in La Verne Law Review in 2020. Thank you to the editorial board for editing and publishing this article. Citation: 41 La Verne L. Rev. 2 (2020).



@Posner_Thoughts - The Verified Account: A Review of Judge Posner’s The Federal Judiciary: Strengths and Weaknesses



Daniel Coble


There is a Twitter account that is aptly named “POSNER THOUGHTS.” It is exactly what you would expect if Judge Posner was on social media and had access to a device that could seamlessly stream his innermost thoughts. While I am pretty sure that this is not the real Judge Posner (though not positive), I believe that I have found the blue checkmark account run by Judge Posner himself in The Federal Judiciary: Strengths and Weaknesses.[1] Judge Posner has written a fascinating, yet controversial, account of his times, thoughts, and critiques of the third branch of government of the United States. Posner being Posner—he does not hold back. Whether it is discussing the separation of powers doctrine, his view on the Fourteenth Amendment, or his disdain for Justice Scalia and his constitutional interpretation, Judge Posner is relentless in leaving it all out there. I truly do find the book and these “thoughts” to be illuminating and offering an unabashed assessment of the judicial branch, however, at times his personal critiques of his critics can go overboard. But what would a legal scholar, and some might even say legal genius, be without a little bit of brashness? It is in Judge Posner’s latest book that readers and followers alike are drawn down this rabbit hole into a fascinating and sometimes murky legal world.


Flow


Judge Posner has divided The Federal Judiciary into five chapters that systematically critique the judicial branch of the federal government. Before going through the structure and layout of the book, a word must be said on the flow. Anyone who knows of Judge Posner surely understands that this is a man of no short genius. He has written, lectured, judged, and read more than most, if not all, sitting judges. He understands our Constitution and its history in a deep and technical way, and is not shy to let that be known. This book is not so much of an analytical point by point approach to a problem, but rather a stream of consciousness from a judge who has seen enough and heard enough to believe that it is his time to give his full throated opinion. Now, this stream of consciousness can be quite refreshing and at times humorous. However, there are also times throughout the book where it is too jumpy and adds confusion to areas that are already perplexing. This also leads to a repetition of themes—not so much themes plural, but theme singular: Justice Scalia and his constitutional interpretation. A reader will not make it far into the first chapter before being confronted with Posner’s belief of the hypocrisy of Scalia’s textualism and originalism. And that same reader will only make it a little bit further into the first chapter before being bombarded with Posner’s opinions on supporters of Scalia’s interpretations. This ranges from law professors, judges, law school deans, and probably more than anyone else—Justice Elena Kagan.


Tier One and Scalia


Back to the structure. The book is divided into five chapters, and three of those are focused on the three levels of the judiciary: Supreme Court, Courts of Appeals, and District Courts. The majority of Posner’s book is dedicated to his disdain, or bemusement, with the current Court. This chapter is entitled “Tier One” and goes through a litany of problems that have arisen since the creation of our republic. One cannot help but be in awe of Posner’s sheer knowledge of the entire court system and laws of our nation, while at the same time having the wit and wherewithal to write like a poet on these complex issues. His criticisms and hopes for improvement are too long to list. But one will quickly realize that the overarching theme throughout this first and longest chapter is his condescension for Justice Scalia and his originalism.


While this review is not here to take sides on the view of originalism, an observer of Posner will quickly have a reference guide to why he is not a fan, to say the least, of this type of interpretation. First, Posner gives several examples of how a judge reading the literal words and words only of a statute will reach preposterous results. Posner then gives historical accounts of the Constitution and Bill of Rights to illustrate why the original intent back then is not the same now, and he finds it almost incredulous that our judicial system should still be bound to a time that is so different and dissimilar to ours. For example, Posner theorizes how the current Constitution is even constitutional being that the original Articles of Confederation were not properly dissolved.


After listening to the supplications from Posner, the reader is handed what Posner believes should be the correct application of the law: judges should look forward not backward. First, he doesn’t worry about precedent or doctrine, but instead focuses on what is the sensible solution. Then he looks to see if he is blocked from doing it. He even admits he is usually not blocked, but in the event he is, he can get around it. Posner’s main focus is that the Constitution could not have contemplated for our era today, so we should look to modern day solutions first. But what about predictability? Eric Segall, a respected constitutional law professor, describes Posner’s thinking best:

Judge Posner’s transparent efforts to reach the best results by looking at facts on the ground and anticipated consequences (and prior cases), without regard to the rules and values of yesteryear describe current practice accurately and will lead to better decisions than original-meaning analysis, which runs out in most litigated cases and simply hides the true reasons for judges’ decisions. (p. 86).

An issue that pops up with this analysis is not so much the process, but the person. Most judges and litigants would fully respect a Judge Posner deciding their case and applying this future oriented standard. But what about other judges who might not have the gravitas of Posner? After all, one of our judicial tenets is predictability.


Whether you agree or disagree with Judge Posner’s view and application of the law, readers should absolutely read this book to get a better understanding of Posner’s beliefs and criticisms and also to get a better understanding of their own views. Posner’s ability to punch through weak arguments is uncanny and will improve any academic or legal discussion.


However, there are some parts of Tier One that I believe should be excised (and I believe even Judge Posner knows that sometimes his delivery is not always as crisp as it should be). For example, straight out of the gate this chapter begins its criticisms, not with constitutional interpretation, or outdated legal theories, but rather with a very personal “appraisal” of Justice Kagan. Posner begins by describing an “effusive, hard-to-believe statement” by Kagan that he believes all readers should be aware of (p. 65). What is this statement? This outrage? It was her statement eulogizing the late Justice Scalia and describing her affection for him and his company. While I understand that Posner is perhaps frustrated with this “lionization” and maybe even perturbed by what he believes is disingenuous, the manner and mechanism in which he goes after Kagan—repeatedly throughout the book—is off-putting. This feeling goes from uncomfortable to cringeworthy when he dedicates an entire paragraph to whether Scalia really cared about his own “future” and “health” (p. 140-141). The paragraph explains in great and painstaking detail (and seems to be based partly on rumors and conjecture) how Scalia passed away and even surmises that maybe his religious beliefs had something to do with this result. It is passages like these, that I find unnecessary and over the top, that should be edited out so readers can focus on Posner’s true intellect and ideas and not be distracted by personal follies.


Appellate Courts vs. Posner vs. Trial Courts


The final two rungs of the federal judiciary are covered in Chapters Three and Four, titled Tier Two and Tier Three. These two chapters are frustratingly fantastic. Judge Posner knows what he is talking about until he doesn’t. His knowledge and ideas are ripe for discussion and present new ideas that could improve and reshape our legal system. However, these brilliant ideas are often interrupted by his irrelevant thoughts on mundane matters. This ranges from personal grievances to unrealized contradictions. The potential for these two chapters is great, and still is, if the reader can put aside and cut out the superfluous information and pull out the strengths and weaknesses that Posner presents.


Tier Two is dedicated to the Courts of Appeals in the United States. The chapter consists of the inherent problems with the standards of review that an appellate judge is supposed to follow when deciding a case on appeal. Posner makes a compelling case as to why there are too many standards and that appellate courts can be too deferential to trial judges. His method of delivery for this analysis is also very instructive and demonstrative. He presents all of the standards of review (de novo, harmless error, abuse of discretion, etc.) and gives their legal framework. He then clearly articulates why he disagrees with the standards and how confusing, misleading, and subjective they can be. These evaluations stand out among this book as concrete strengths and weaknesses that his subtitle had alluded to.


However, his rectifications to these issues is lacking. Posner has proposed, what seems to be, multiple solutions for these problems. In an attempt to pull out what the standards of review should be under a Posner school thought, the reader will find several different ones. And this leaves two problems. First, appellate courts are supposed to have some sort of legal uniformity. This allows for predictability to both trial judges and litigants. It is a foundation of our legal system that one who goes before a judge should have an idea of what the outcome should be based on the appropriate law. Second, the proposed standards seem to be too subjective, which might work for Judge Posner, but how does that apply to the hundreds of appellate judges across the nation?


While some of these standards could perhaps just be Posner thinking out loud, these appear to be some of the standards of review that he is proposing:

All the appellate court has to do is decide whether the agency’s challenged ruling is reasonable and not in patent conflict with a statute, the Constitution, or a governing precedent, etc. When I need to make such a decision I ask myself whether the agency was behaving reasonably in issuing the challenged ruling and if so I’m very reluctant to reverse, while if I decide that it’s behaving unreasonably I’m very reluctant to affirm on the authority of statutes or precedents that I doubt were intended to compel the reviewing court to behave unreasonably. (p. 256)
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Why not just say: if the appellate court thinks the district judge or the jury erred on a point material to the outcome of the case, it should reverse. (p. 262)
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I would go further. In cases in which the appellate court discovered significant factual errors in the district court’s disposition of a case that has been appealed, I would give the appellate court the option of taking evidence and making factfindings itself, rather than having to remand the case for further evidentiary proceedings in the district court likely to delay the final decision in the case indefinitely. (p. 266)

He then gives yet another standard: if the appellate judge disagrees with the trial judge on any issue, then it should reverse unless the ruling


is certain or at least highly likely to have had no effect on the outcome of the district court proceeding—to have been therefore a ‘harmless error.’ But the appellate court should bear in mind that it prevails when it disagrees with the trial court not because it necessarily is right but because it is on a higher rung of the judicial hierarchy. The analogy is to a parent disciplining a child. (p. 268)

Lastly, Posner presents one more standard: the appellate court should base their decision partly off of the experience and respectability of the trial judge.


While in theory these standards might seem to make sense, in practicality I believe they would range from difficult to absurd in their application. There is no doubt that if Judge Posner was a one-man appellate court these standards would work aptly. Litigants would know what to expect from Judge Posner and would conduct themselves accordingly. But with such a large and widespread appellate court system, I believe Posner has shown why the standards of review exist in the first place. I must also admit my bias against his “rung on the ladder” standard, myself being a trial judge at the absolute lowest rung.


Before moving onto Tier Three, another part that should be skimmed over by the reader, Posner takes over six pages to hit back at a Harvard law professor who wrote a law review article in support of the Chevron standard and at the same time criticized Judge Friendly. Instead of presenting a concise and brief argument against this article, Posner begins his critique with a personal observation that the professor “has never practiced law or worked for an administrative agency” (p. 246). This argument, that lack of experience in a field diminishes one’s ability to critique that field, seems to contradict everything Posner has to say about trial work being that he himself is an appellate judge and not a trial judge.[2] He ends his criticism of the professor by lamenting the length of the law review article (57 pages), just after he finishes his own six pages dedicated to what seems to be an irrelevant point. Instead of presenting a clear and to-the-point rebuttal to the professor, he puts forward a lengthy diatribe that is bookended by silly plugs. It should also be pointed out that when looking to the back index, you will find this same professor listed in the Epilogue under the term “defense of Justice Scalia” (p. 238).


Tier Three is refreshing and stimulating. This chapter focuses on new and genuinely frank ideas that Judge Posner proposes with the understanding that some are much needed and that some might be pushing the bounds. But this is Posner at his zenith. Combining his intelligence, experience, and frankness is just what our legal system needs. A system that is stagnate becomes ripe with problems, especially for the accused. The proposals that Posner makes, whether you agree or not, are discussions that are already happening. From legalization of drugs, to amending the federal guidelines, to eyewitness evidence, Posner brings a respected and listened to vantage that will help move the ball forward on important issues facing the federal judiciary.


A Good Ending


The final chapter of The Federal Judiciary is again refreshing and just what the reader has been searching for throughout the book: genuine issues that Judge Posner disagrees with that are applicable throughout the legal system. While the first half of the book has more of a “setting the record straight” tone, this final chapter satisfies the craving to pick Posner’s brain. One of these issues is “Internet Research.” This area is growing in trial practice and confounds many evidence experts. Posner proposes a new concept and understanding of this research that takes both its credibility and usefulness into account. He also puts forth a practical and extremely reasonable take on the rules of evidence, and in particular, the rules concerning hearsay. Posner understands that the hearsay rule can be convoluted and overthought. By reducing the hearsay rule and removing its cumbersomeness, Posner provides a practical idea that judges could and should implement. His “main criterion for the admissibility of evidence should be whether it is reliable, not whether it is firsthand or secondhand” (pp. 357–58). Posner also ends his book on an ever so slightly positive note by giving a brief positive remark about Scalia and his respect for him.


Judge Richard Posner will go down as one of the most respected and admired judges that has sat on the federal bench, and rightfully so. He has written and expounded more on the law than most legal scholars while at the same time writing hundreds of legal opinions each year before his retirement in 2017. With all that genius though, I did find one part of his book amusingly ironic.[3] In Chapter 5, Posner takes issue with several exceptions to hearsay found in the Federal Rules of Evidence, including the present sense impression, excited utterance, and dying declaration. He makes compelling, thought-provoking, and historical arguments as to why he believes they are incorrect and should be dispelled with. What is slightly amusing about his opinion on these exceptions is not the conclusion he draws, but how he reaches that conclusion. Posner goes through the deep history of the rules and how they came to be. He cites to nineteenth century American law and its relation to the exceptions. He even goes so far as to cite the medieval origin of the dying declaration and its Latin phrase. It is as if he is, dare I say, using an originalism interpretation to reach his conclusion.


The final rule that he seems to admire is Federal Rule of Evidence 807—the catchall exception to the hearsay rule. To Posner, an improvement of the hearsay rule would involve “essentially a simplification of Rule 807” (p. 358). Yet, he forgets to mention one Supreme Court case that has essentially simplified this rule that he so much desires—Crawford v. Washington, 541 U.S. 36 (2014)—a case that held that a defendant has a right under the Sixth Amendment to confront his accusers despite any catchall hearsay exception. A case that was decided based on the original intent of our Founding Fathers. A case that was decided by the late Justice Antonin Scalia.

[1] Richard A. Posner, The Federal Judiciary: Strengths and Weaknesses (2017). [2] He does go to great lengths to explain his work as a trial judge for district courts at times, but this experience seems to be very limited. See page 289 in his discussion on indictments and probable cause. [3] Judge Posner will likely define the word ironic for me and point out that I’m using it incorrectly, which indeed does make it ironic.



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