William Domnarski’s new biography of Richard Posner, at 256 pages, could scarcely fail to be more than a rather cursory summary of the sixty-year oeuvre of one of America’s most verbose judges, who also claims to be an economist and an intellectual across a broad front of the humanities and social sciences. The raison d’être of the book is that the author, William Domnarski, a specialist lawyer and writer on legal issues and the American judiciary, regards Posner, as do many others, as a man of uncommonly original opinion, and one who has, to a considerable degree, “dominated” American law for many years.
Posner is the only son of a pair of Jewish Communist fugitives from the inhospitable Eastern Europe of the early twentieth century. Irreligious, apparently not over-affectionate parents, they were fiercely ambitious for their son (an only child born in their later thirties, in 1939), and they were financially successful, moving from the Upper West Side of Manhattan to Scarsdale in 1948. Young Richard was a very diligent and precocious student through school and on to Yale College and Harvard Law.
I appeared twice as an appellant (and therefore not in person) before Posner in a criminal case in 2008 and 2010. For the purposes of this review, I have done my best to retain a dispassionate opinion and will touch on my own case when it arrives in this review of Domnarski’s chronology.
Posner was a brilliant student, apparently fairly well liked by his peers, at least considering the sort of precocious swot he was, all through school and university. There was never a trace of the rebel or the impudent student about Posner, though a youngster as intelligent as he was could not have failed to be contemptuous of the limitations of some of his teachers and professors, with whom he often debated, but without much apparent friction. Domnarski seems to have done a conscientious survey of report cards, records, and peer interviews from earliest times. From the start, Posner was set to advance his career as quickly as he could and to effect whatever vast reforms he sought in American society, once he had found a platform from which he could exert his influence. (He hasn’t gone abroad much, other than as a casual tourist or to give a few lectures in England; knows no foreign languages, though he likes to scatter French and Latin aperçus; and apart from some English and German literature, especially Shakespeare and Yeats, rarely evinces other than an Americocentric formation. Posner is a well-educated man, but his world is a narrow one, as Domnarski acknowledges in the closing pages of this book).
There was never a trace of the rebel about Posner.
He was attracted to economics as an academic subject, originally from the left, reflecting his parents’ Marxist tendencies (that mellowed somewhat in his father’s case when he achieved moderate prosperity). But he considered law a more promising avenue to prosperity and influence, and, early on as a law graduate (coming first in his class at Harvard), he soon developed and claimed a novel relationship between law and economics, which became the core of his life’s professional mission. This was essentially an effort to legitimize a superior economic outcome, in terms of efficiency, in a legally contested matter, in preference to the settlement of cases on the basis of the arguable legalities alone. Throughout such effort, however, Posner had the tactical cunning never to shed the sacred cloak of the rule, primacy, and civilizing sanctity of the law as it had been written and applied (and which shields and justifies all aspects of the legal cartel’s activities).
But he has gone to Columbian frontiers of both intellectual ingenuity (in which he is far from deficient) and also persistence, as a professor at Stanford and the University of Chicago, and then, having evolved well to the political right, as a Circuit Court judge in Chicago from his appointment by President Reagan in 1981 up to the present, to propagate his views. Sometimes with collaborators in legal academia and juridical colleagues (but reserving the most daring propositions for himself alone), Posner has promoted his views tirelessly and made them more forceful by an endless parallel campaign of claiming to be a legal revolutionary in demanding that the law be applied according to predictable economic benefit. Domnarski lays out fairly scholastically, for such a short book, the intellectual rationale for all this, though it was really a move to reposition legal judgments from an interpretation of what had actually been legislated to a construction of decisions according to greater foreseeable societal economic benefit.
In straight intellectual terms, this was not a bad idea. The law, desiccated and without regard to consequences, is pretty dried parsley and, unimaginatively imposed, will often require many shattered social pieces to be put back together by remedial legislation. (This notion of the abstract law was espoused by Oliver Wendell Holmes, whom Posner hero-worships in a rather pedestrian book.) Posner deserves great credit as an ambitious and intellectual legal academic and judge, and as a very aggressive careerist, for parlaying what amounted to academic sophistry into an apparently serious school of legal philosophy. It is terribly overstated that legislators legislate, lawyers argue, and judges judge what the law is, as written and interpreted, but Posner saw an open channel and charged up it.
It was serendipitous that the Reagan Justice Department saw Posner as a friend of Reagan’s anti-permissive attitudes to crime and profound endorsement of the law as helping rather than harassing commerce and economic efficiency and as a source of interesting notions of how to make the law more profit- and efficiency-friendly. Posner realized that he had caught the fancy of people whom he did not entirely regard as his intellectual peers or even soul-mates, but to a man of his ego that was not a novel or disconcerting experience; he saw the main chance, rushed up the gangplank of the Reagan administration, and has erupted from the appellate bench, law journals, and the lecture circuit decade after decade ever since. Posner sold his share in a profitable consultancy he had built up at a handsome price, and went to the bench a man of independent means. The man caught the moment, seized the day, and built his career on this fortuitous confluence of events. He can’t be faulted for any of it, but none of what followed has established him as a dominant influence on American law.
There were bound to be misadventures and infelicities these thiry-five years, as Posner has taken the pulpit and sinecure of the Seventh Circuit, where he arrived aged forty-two, and used it as a platform for all the unceasing ramifications of his, as he fancies it to be according to Domnarski, “promethean” intelligence and ambition. The author tries to sketch out the major cases in this long legal crusade. I don’t see where any of Posner’s decisions changed anything very much, and the most famous episode involving him, the attempted mediation between the federal government and Microsoft, is recounted by Domnarski with heavy praise of Posner’s lengthy conversations with Bill Gates and the federal assistant attorney general Joel Klein (later the New York City chancellor of schools and then the chief independent director in Rupert Murdoch’s News Corporation as the hacking scandal perpetrated by that company unfolded). No doubt, as Domnarski recounts, Posner acquitted himself well in these talks (as did Gates and Klein), but there was no agreed solution and the mediation was unsuccessful.
Domnarski presents my case (Black v. United States) as a “sternly worded rejection” by Posner. I was accused of seventeen counts of fantastic crimes, such as racketeering and money laundering. Four counts were abandoned and nine rejected by jurors, and Posner obviously didn’t bother reading our appellate brief before frivolously rejecting it, though it was filed and argued by a distinguished former deputy solicitor general, Andrew Frey. The U.S. Supreme Court unanimously vacated the remaining counts (with one recusal) and excoriated the lower courts for, inter alia, “the infirmity of invented law.” Domnarski does not mention the statute involved (the so-called “Honest Services” statute) was declared unconstitutional. In the peculiar American manner, the Supreme Court remanded back to Posner’s Circuit Court panel the “assessment of the gravity of their errors.” Domnarski does not mention that Posner completely failed in his duty as the last trier of fact before we went to the Supreme Court, or that Posner failed entirely to note the constitutional issue, though it was the core of our argument. The author does not mention that, when he got the case back, Posner spuriously resurrected two of the vacated counts and recommended to the trial judge not to change the original sentence (advice that was ignored).
Posner completely failed in his duty as the last trier of fact.
At the initial appeal, Posner interrupted two-thirds of the sentences Frey began and dismissed with a wave of the hand Frey’s assertion that the outstanding obstruction conviction was the “weakest he had seen in forty-five years of legal practice.”
On remand, Posner (and his two co-panelists, who were known among counsel as “the cigar-store Indians” because of their reluctance to open their mouths in the presence of their dictatorial chairman) grudgingly allowed two of the four counts that had grimly survived the trial to lapse, but Posner proposed retention of the original sentence anyway. Here my counsel was the eminent barrister Miguel J. Estrada, who had won for me at the Supreme Court. Posner was again so belligerent that Estrada had to ask to be “allowed to finish just one sentence.” He even interrupted answers to his own questions. The trial judge was unimaginative and an inveterate ex-prosecutor, but efficient and civilized, and cut the original sentence by three whole years. In an arrangement that had every sign of having been cut in the judges’ lunch-room, she gave me a victory lap of seven months in prison as a fig leaf for Posner, the prosecutors, and herself to pretend that there had ever been any merit to this entire travesty. (Various claimed friends of Posner, including some named in this book, contacted me to express their outrage at his conduct.)
At the end of the book, Domnarski reveals that Posner considers himself “sheltered,” never having known any dishonest people, or people with dysfunctional marriages, or people subject to mental disorders, or sociopathic or abusive behavior. This is not surprising, given the inhumanity of his decisions and of many of the positions he takes in the endless torrent of articles he spews out, many of which he then packages together in groups, like a pasticheur, to publish and so to assume the false airs of a prolific author of real books. Thus, in his upper seventies, he now wonders if sentences should not be shorter, having for many previous years objected to the right of free speech by prisoners and to the receivability of legal complaints by incarcerated people.
It had not penetrated his sheltered mind that there was something disproportionate and worrisome about the United States having 5 percent of the world’s population, 25 percent of its incarcerated people, half its lawyers, 49 million felons, and a conviction rate of 99.5 percent, 97 percent of those without trial. He has sat thirty-five years on the second-highest bench in the country, making arcane points about the application of economic criteria to legal decisions (such as that the process of adoption of children should be by cash auction), but seems not to have reflected for one moment on the fact that the Bill of Rights’ guaranties of the Fifth, Sixth, and Eighth Amendments of the grand jury (as an implicit assurance against capricious prosecution), due process, no seizure of property without just compensation, prompt justice, an impartial jury, access to counsel (which the courts have construed as counsel of choice), and reasonable bail have all been put to the shredder. (Certainly, I benefited from none of the above.) In these thirty-five years that Posner has adorned the federal appellate bench, the United States criminal justice system, as other federal judges such as Jed S. Rakoff have forcefully argued, has become a fascistic prosecutocracy feeding a corrupt carceral state. The legal profession now takes nearly $2 trillion of the U.S. gdp, but Richard Posner, champion of the economics of the law, has not noticed any of it.
It is not clear to me, even after the most attentive reading of this book and a good deal of Posner’s books and articles and judgments, that Posner has really done anything significant for the development of the law in the United States. He has emulated Learned Hand in devising an algebraic formula for determining liability in certain tort and contract cases, but it is a gimmick—it had very limited application under Justice Hand, but with Posner it is just a knock-off imitation, cheapened by assembly-line repetition. In one of his more innovative notions, Posner applied a Learned Hand–like formula to rating public intellectuals in the United States and devised a list of a hundred such civic lanterns. Henry Kissinger was first, but our very own Dick Posner showed exemplary modesty in putting himself only seventieth among 300 million of his fortunate countrymen.
A fascistic prosecutocracy feeding a corrupt carceral state.
Some of Posner’s premier books are simply rubbish, among them his meteoric rebellion from the thralldom of his pontificacy in the astonishing but disappointingly unrevealing, volume, Sex and Reason. His quickie book A Failure of Capitalism (written “in medias res,” as he pompously describes his writing), on the 2008 financial crisis, gave an unexceptionable tour of the root causes of the housing bubble and the debt bomb it fostered, admirably laid the blame on public officials rather than the private sector, and brought forth the banal conclusion that “an adequately funded” commission of inquiry into the origins of the crisis be struck. (He’s always good at tossing the public’s money around, as when he launched his own investigation into the September 11 terrorist attacks and after six laborious volumes called for domestic intelligence agencies as in Britain and Canada, as if American agencies didn’t have domestic operations already.)
What Richard Posner exemplifies is the danger of the more desiccated products of the Enlightenment. He learned the facts of his academic courses and did well in them; published prodigiously and adequately controversially, hitting the free market button just as the Reagan administration came to office determined to clean up a socialistic, bleeding-heart judiciary. But he has been an unwitting soldier in a culture war. He is an atheist who does not believe in any spiritual forces in the world, so deaths mean nothing to him if they occur in logical sequences—the deaths of his parents, whom he did not much like anyway, meant “nothing” to him (see Larissa MacFarquhar’s profile in The New Yorker, December 2001). Where an acquaintance’s child has died, or a spouse prematurely, he expresses sadness, sometimes eloquently, but where the deceased is of full age or declining capacities, his messages, quoted in this book, of ostensible condolence in fact debate with the bereaved about whether the death was even a regrettable event.
His entire career has been almost without any human content—he has been married for fifty years and has a family, for which he professes an interest, and, in testimonials of the sort judges and lawyers are always showering on each other, he appears to have some normal relationships, and the clerks interviewed by this author found him fairly convivial. But he seems to have spent his whole adult life in self-promotion for its own sake, within the cozy cocoon of the appellate bench of the legal profession.
Given his long success at seizing public attention (though he was soundly whipped in a decade-long battle with the talented leftist polemicist Ronald Dworkin), it is surprising that the most interesting aspect of Posner’s life, and one that Domnarski catches quite well, is his preoccupation with cats, especially his own cat. Domnarski quotes the New Yorker personality sketch of Posner, in which he says that he shares with his cat the personality traits of being “cold, furtive, callous, snobbish, selfish, playful, but with a streak of cruelty.” He expresses his admiration for cats often, but though Domnarski does not mention it, the New Yorker piece reveals that Posner was disconcerted because his cat did not like him.
As all cat-owners or -fanciers know, he identified many of the better-known feline traits, but cats are affectionate and reciprocate affection, even if it almost never takes the form of being cooperative, much less obedient. Cats attract because of their elegance and astonishing physical prowess in all things, not areas where even Posner (whose sense of modesty is rarely discernible) is likely to claim much fellowship. His appreciation of feline self-absorption, willfulness, and ruthlessness is understandable, but cats almost never expend unnecessary effort, which is the antithesis of Posner’s whirlwind careerism. If Posner is groping toward why his cat does not reciprocate his affection, or at least regard, however, there glimmers indistinctly, at long last from this unremitting source, a slight gleam of humanity.
Apart from that faint signal from the heart of Posner’s dark personality, to cite William James, of whom Posner approves, he is, as James wrote of the octopus, strangely “inaccessible to human [and presumably feline] sympathy.” Less generously, to paraphrase Lord Macaulay (of King William III, whom Macaulay admired), Posner is a man of repulsive coldness, an impression this workmanlike and ostensibly supportive book does nothing to refute. Worse, in his reckless disregard for equitable, merciful justice, Richard Posner is a dangerous and sometimes a wicked man.