Seventh Circuit judge Richard Posner has sent a long note to Above the Law in which he corrects or clarifies his recent statements about the current Supreme Court justices.

Posner oh-so-helpfully clarifies that when he said that, of the current justices, only Justice Ginsburg and Breyer are “qualified” (but just “okay, … not great”), he did not mean that “the others lack the necessary paper credentials, of which the most important are graduating from a law school and passing the bar exam.” It’s very gracious of Posner to be firmly on the record that he recognizes that Chief Justice Roberts and Justices Kennedy, Thomas, Alito, Sotomayor, and Kagan each graduated from law school and were admitted to the practice of law.

What Posner meant by saying that the others aren’t qualified is simply that none of them, in his considered judgment, is “good enough to be a Supreme Court justice.” Here’s his full explanation of what he means by that:

There are something like 1.2 million American lawyers, some of whom are extremely smart, fair minded, experienced, etc. I sometimes ask myself [SCOTUS-envy ALERT!!!]: whether the nine current Supreme Court Justices (I’m restoring Scalia to life for this purpose) are the nine best-qualified lawyers to be Justices. Obviously not. Are they nine of the best 100. Obviously not. Nine of the best 1,000? I don’t think so. Nine of the best 10,000? I’ll give them that.

How strange. To take just the most obvious example, John Roberts, before he went on the bench, would surely have been on lots of lists of the “nine best-qualified lawyers” in the country. I mean no disrespect to Ruth Bader Ginsburg or Stephen Breyer to note that they likely wouldn’t have been.

In any event, the metric of “best-qualified lawyers” is an odd one, as there are lots of superb lawyers who don’t know the first thing about the Constitution and there are some people with excellent legal minds who aren’t practicing law. If the standard is instead “outstanding legal ability” (even in isolation from considerations of ideological soundness), I think that several of the others (including, to pick another liberal, Kagan) match or exceed Ginsburg and Breyer. Scalia surely did as well, but Posner evidently can’t​ resist the occasion to take another cheap shot at him.

Posner also clarifies that he meant to observe that only Sotomayor had been a trial judge and that he thinks that “every appellate judge, including Supreme Court Justices, who have not been trial judges should volunteer to conduct trials” (as he has done). That’s a retreat from his previous statement that “[i]t’s ridiculous to have an appellate judge who doesn’t have trial experience.” (This bears on point 2 of my original post.)