Bench Memos

Law & the Courts

Posner’s Latest Book Is ‘Bats**t Crazy’

That’s not my assessment of Richard Posner’s self-published book on pro se appeals. (I haven’t read the thing and don’t expect to.) Rather, it’s the assessment made by an admirer of Posner, Matthew Stiegler of CA3blog, who (after “start[ing] with the positive”) includes these critiques (underlining added):

At its heart, this book is a baffling, disjointed blow-by-blow of Posner’s many recent battles with Seventh Circuit Chief Judge Diane Wood, the quite-unintentional hero of the tale.

The primary battle arose from Posner’s demand that he be allowed to re-write all his circuit’s staff attorneys’ memos and draft opinions before they went to his fellow judges. This is a ludicrous idea. Posner thought it “uncontroversial” and he was “surprised” when it was met with first silence, then uniform rejection. When Wood told him so, Posner “angrily” threatened to reveal staff counsel work product he deemed not good enough. When he was told that doing so would violate the judicial code of conduct, he resigned, and now he has self-published everything — memos and drafts by staff counsel peppered with his acid edits, emails between the judges, the whole trainwreck.

And why did Posner anoint himself as filter between the staff attorneys and his colleagues? Largely, he says, because “uniquely among this court’s judges, [he had] a deeply felt commitment to the welfare of the pro se litigants.” But, by his own account, he only “became interested in the staff attorney program in the late winter/early spring of this year (2017).” And in his preceding three and a half decades on the court, “I’m pretty sure I’d never even discussed it with another judge.” Deeply? Uniquely?

It gets worse. Posner chooses to reveal the initial panel vote in a still-not-yet-decided appeal that he identifies by name. The other two panel members plan to affirm, he tells us. (Posner disagrees, so we get two paragraphs summarizing and quoting from the dissent he would have filed.) What compelling reason led him to include this stunning disclosure in a book ostensibly about pro se’s and televising arguments, when this case has nothing to do with either? Because “I’ve decided to note two recent clashes with colleagues.” This is not Posner-being-Posner, this is madness. . . .

Posner’s enemies will be chortling, but, for his many admirers, it’s just sad.

I’ll add just a couple of comments. First, I don’t grasp the supposed distinction between “Posner-being-Posner” and “madness”; I think that’s what’s often called a distinction without a difference. Second, as one of Posner’s critics, but not (in my view, at least) as one of his “enemies,” I don’t find much amusement in his buffoonery.   

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