The Maine Coon Cat On The Bench
November 30, 2016 (Fault Lines) — The Maine Coon is one of the largest domesticated breeds of cat. It has a distinctive physical appearance and rarified hunting skills. Such cats can weigh 17 pounds and from the tip of the tail measure 3.3 feet in length.
The human equivalent of such a creature is Judge Richard Posner, particularly when it comes to hunting skills. At least as of 2014, Judge Richard Posner unsurprisingly had such a cat.
I have just completed reading William Domnarski’s* Richard Posner, Oxford University Press (September 23, 2016). If you want to be a first rate lawyer (or judge) of any kind, and particularly if you want to be a first rate CDL, this is a book you must read—and slowly.
Really, you say, why should a CDL read about Posner?
You probably remember Booker, the Supreme Court’s decision blowing up the Sentencing Guidelines. It was Judge Posner who authored the Seventh Circuit opinion killing the Guidelines that became the basis for Booker. Over a dissent from Judge Easterbrook, Judge Posner made it clear that Blakely had to be followed to its logical extreme. District judges needed to know that was so and they needed to know it fast.
The opinion was released in typescript three days after oral argument and 16 days after Blakely was decided. United States v. Booker, 375 F. 3d 508 (7th Cir., July 9, 2004) (Posner: “As an original matter, then, we think that the guidelines, though only in cases such as the present one in which they limit defendants’ right to a jury and to the reasonable-doubt standard, and thus the right of defendant Booker to have a jury determine (using that standard) how much cocaine base he possessed and whether he obstructed justice, violate the Sixth Amendment as interpreted by Blakely. We cannot be certain of this. But we cannot avoid the duty to decide an issue squarely presented to us. If our decision is wrong, may the Supreme Court speedily reverse it.”)**
But the paragraph I just wrote is really a teaser. Hands down, Posner is the most important judicial writer and thinker of the modern age and that includes every member of the Supreme Court and such luminaries as Judge Easterbrook and Judge Henry Friendly.
Prove it, you say? Posner’s impact on the law can be measured empirically, and Domnarski is the first (or so I believe) to use an all-encompassing empirical measure to prove the point.
Westlaw assisted Domnarski. As the lawyer-reader knows, Westlaw produces headnotes which are in essence distilled points of law. Using those headnotes, a search was done to find that Posner used 9,573 distinct principles of law that translated into 24,574 headnotes in his opinions and those Posner principles have been cited 213,474 times. The next closest judge was Judge Easterbrook, he too of the 7th Circuit, with 6,182 distinct key number principles of law that have been cited 138,662 times.*** Judge Henry Friendly, who Posner regarded highly as did virtually everyone else, was even further behind with 4,151 distinct key numbers and 63,915 citations.
But I have still not made my real point. So here goes. While Domnarski’s book is a judicial biography, it is far more importantly an intellectual biography.**** And that is why you must read it.
It takes you through Posner’s early life, through his elite schooling, in and out of Justice Brennan’s chambers (an easy job, so suggests Posner), teaching, judging, law and economics, the law and literature movement, his dismay regarding the performance of district judges and lawyers, his bemused thoughts about the Supreme Court and Posner’s engagement with the world on such subjects as sex and terrorism, and an almost limitless number of other subjects.
The book shows with exquisite care befitting Judge Posner what true intellectual rigor requires. Just as Maine Coon cats are especially good hunters, Posner has consistently been a hunter for ideas, legal and otherwise. In Domnarski’s exegesis, we learn what it is to be the best hunter in the world.
Too much highfalutin talk, you say! OK, try this: read the book ‘cause it will make you less dumb.
Richard G. Kopf
Senior United States District Judge (Nebraska)
*I am a huge fan of Domnarski. He holds a Ph.D. in English Literature (Posner was an English major and had the makings of a first rate Yeats scholar) and a law degree. Bill has actually practiced law, too. He is an unreserved critic of the bench and bar in much the same way as Posner. Like Posner, Bill is also a writer of astonishing gifts as I observed here in 2014. Of interest to CDLs, according to Bill’s web site, he has handled “more than two hundred cases in federal court covering the full range of crimes set out in the United States Code.”
** It is worth noting, and emphasizing, that Posner was not fooled by Scalia’s slippery (disingenuous?) footnote 9 in Blakely (“The Federal Guidelines are not before us, and we express no opinion on them.”) By comparison, Posner’s intellectual abilities make Scalia seem slightly dim witted.
***Easterbrook’s temperament on the bench is compared to Posner’s. While Posner hunts to feed his intellectual hunger, sometimes using tooth and claw at oral argument, Easterbrook is seen hunting at oral argument for the sheer joy of the ensuing bloody and prolonged slaughter.
****Posner did not discuss his wife, Charlene Posner, or two sons (Kenneth and Eric) with Domnarski. Eric is himself a highly regarded law professor at Chicago. If my research is correct, Kenneth is a CPA with an English degree from Yale and MBA with honors from the University of Chicago, who now works as Chief of Strategic Planning and Investor Relations at Capital Bank Financial Corp.