Posner in Action

by Ed Whelan

Conrad Black’s New Criterion review of a biography of Judge Richard Posner is an entertaining read (even if some of Black’s observations on our criminal-justice system seem warped by his own bad experiences as a criminal defendant, including, as he discusses, at the hands of Posner). Among other things, you may get some insights into why even Posner’s cat doesn’t like this “man of repulsive coldness.”

The Department of Justice lawyer who argued this immigration case earlier this week to a Seventh Circuit panel that included Posner is unlikely to be persuaded of Posner’s supposed brilliance. If you’ll listen roughly from 9:45 to 15:00 and again from 19:35 to 20:50, you’ll hear the attorney repeatedly explain that the alien can’t be removed to South Sudan because there is no agency order authorizing him to be removed there. Posner has difficulty grasping this point or accepting its legal relevance, and can barely contain himself.

An excerpt (unofficial transcript):

Posner: You don’t understand me.

Lawyer: I do understand you.

Posner, yelling: No you don’t, because I don’t give a damn if he’s a citizen of South Sudan. You regard that as absolutely critical. I don’t see that at all.

Lawyer: There is no possibility of him being removed to South Sudan. There is no order allowing that. The agency couldn’t do it if it wanted to; it doesn’t have the authority.


Posner: But I thought you suggested they’d never remove him to South Sudan because he’s not a citizen.

Lawyer: No. I suggested they wouldn’t remove him to South Sudan because there’s no order of removability authorizing them to do so. He did not claim to be a citizen….

Posner: So they could remove him to South Sudan even though he’s not a citizen.

Lawyer: No.

Posner: They can’t? Why not?

Lawyer: Because there’s no order of removal to South Sudan. I’m not sure what I’m not being clear about here.

Posner: You seem to think you can only deport a person to a country of which he’s a citizen.

Lawyer: No.

Posner: You can deport a person to any country that’ll take him.

Lawyer: You can if there’s an order of removal to that alternate country. But the removal order specifies “Sudan.”

Posner: [Groan]

Lawyer: That matters. That means the agency can’t remove him to other…

Posner: Such technicalities. Terrible.

Lawyer: But it’s a technicality that’s relevant.

Posner: Terrible.

Lawyer: It’s important. The agency can’t…

Posner: That’s terrible. Why don’t you think about it?

Lawyer: I’ve thought about it, your honor, but…

Posner: Yeah, well you haven’t thought right about it because you don’t care what happens to this guy.

Lawyer: That isn’t true.

Posner: You’re just preoccupied with the fact that there’s no order removing him to South Sudan.

Lawyer: But that means he can’t be removed there. It matters. I don’t understand.

Posner: Forget it. You’ll never understand so forget about it.

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