Richard Posner Reflects 'On Judging'

Long-time Appellate Court Judge Richard Posner offers solutions for our judicial system in his new book, Reflections on Judging. He talks to host Scott Simon.

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SCOTT SIMON, HOST:

Most federal judges don't write books. They've got day jobs. They often can't talk about their most interesting cases and they're often not eager to be outspoken, except from the bench. But Richard Posner, a sitting judge at the United States Court of Appeals for the Seventh Circuit in Chicago and a senior lecturer at the University of Chicago Law School has written over 40 books, most on the law, but also on economics, literature, history and aging.

His latest book is "Reflections on Judging." He was appointed to the bench in 1981 by President Reagan and we asked Judge Posner, who was in his chambers in Chicago, if he would be likely to be confirmed or even appointed a federal judge today.

JUDGE RICHARD POSNER: No. (Laughing) I'd be too controversial. Of course I've been a judge now for 31 years, almost 32 years, so in the course of that time I've written - I've actually written almost 3,000 judicial opinions, so it would be easy for someone to, you know, pick out opinions that he didn't like or, you know, I've written a lot of non-judicial stuff; academic, and, you know, blogs and...

SIMON: Yeah.

POSNER: Book reviews and so on, so there would be plenty of ammunition.

SIMON: Well, this raises a question which, I think, at some level runs not just through your book, but your career. Do we miss out on judges who could be thoughtful and creative because the process now sort of rules out people who have expressed themselves?

POSNER: Yeah, I think what's happened over the years, I think the variance in the quality of judicial appointees has diminished. I mean, there were some pretty wild judges in the old days. So there's more careful screening, so I think really unqualified people get screened out, but in some ways the most qualified, or at least most interesting people, get screened out also because they're controversial. And, you know, the president, people advise the president, they don't want to have a big fight.

SIMON: When you were appointed a judge, your honor, 1981, the Reagan era, judicial activism was a phrase that conservatives often used to describe what they considered to be the liberals of the Warren court.

POSNER: Right.

SIMON: And they talked about the importance of having strict constructionism. You write about judicial - about what you see as a lack of self-restraint in this book where it seems, without putting words in your mouth, you're suggesting the judicial activism is on the other side of the ledger now.

POSNER: Yeah, I think that's true. Certainly the Warren court was very activist, in the sense that they pushed a liberal agenda very, very hard. They had a very strong liberal majority and then the Burger's - in Burger's era, the court, although more conservative, was quite centrist really. But of course, especially since the Bush appointments, second Bush, but the first - well, Thomas, not Souter. So the first Bush appointed Thomas and Souter - Thomas very conservative, Souter not at all conservative, as it turned out, but then Bush appointed - the second Bush appointed Roberts and Alito, and they've very conservative. So the court has become more conservative, not entirely, not as dominantly conservative as the Warren court was dominantly liberal, but it's conservative-cored. And yeah, ideological voting is a very pronounced characteristic of the Supreme Court and so, you know, decisions that, I think, reflect the political feelings, not necessarily partisan feelings, you know, political ideology of the conservative justices.

SIMON: You write a lot in this book about technology. You express the concern that this generation of judges has mostly grown up without that technology and might not be conversant with it.

POSNER: Those are people who went to college 40 years ago. So even if they took technical courses, what you learned has been superseded to a very large extent by later technology. So your education doesn't help you, even if you remember what you studied 40 years ago. So when the subject matter of a case is technology and the outcome depends on your understanding of the technology, then your life wisdom isn't going to do the trick.

SIMON: But at the same time you would never say, my analytical powers aren't up to this case, would you?

POSNER: Oh, we have to decide it, right? That's the primary job of a judge. You can say, well, I don't understand this so I'm going to go home. No, you have to decide it, but - and the judges will decide even if it means turning over their decisional authority to their law clerks. But that's not a healthy system. You don't want the 25-year-olds deciding the case. You'd like to have a system in which older judges are able to understand technology. It should be quite feasible to provide, you know, continuous training for the judges.

SIMON: Judge Richard Posner. His new book, "Reflections on Judging." Your honor, thanks so much.

POSNER: Thank you.

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