Tagged: Judicial Biography

Posner
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The Man Behind the Robes — A Q&A with Richard Posner

I myself am a counterrevolutionary. I am not eager to be sent to the countryside to do farm work while wearing a dunce cap. (2009)

I’m much less reactionary than I used to be. (2014)   – Richard Posner

This is the third in a series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, and the second one here. (My interest in Judge Posner goes back almost a quarter century. See Ronald Collins & David O’Brien, “Gauging Reputations, National Law Journal, pp. 13-14, April 1, 1991 (commenting on Posner’s Cardozo book).)  

The measure of a man is gauged in different ways. For some, it moves along a spectrum of social approval. For others, it is personal perfection. For a few, it is mastery — that ability to excel in one’s life calling. And then there are those who take public service seriously. For yet others, it is legacy – that long story after the life story. In that journey, whatever one’s direction and destination, a few are bold into the fray, others calculating into the conflict, and still others are quiet into the clash. How we measure them depends on where we stand, how we judge the end game, and just how impartial we are. Then again, how we judge someone may reveal more about us than the person being judged. Bear all that in mind as you read the words of the man — an atypical  man — who is the focus of this and the other interviews.  

Richard Posner

Allen Richard Posner (see below)

How, then, to measure Richard Posner? It is not an easy task; he is complex. Because of that it is easy to misjudge him. Up close, Posner is unusual. For one thing, his candor can be unnerving. Thus, his personality in one-on-one situations can be odd, unless one is attuned to him, which requires being on his psychological wavelength. For another thing, he is somewhat unconstrained by many social mores. He is, for better or worse, a take-me-as-I-am sort of individual. But give him distance from the province of personality (conventionally defined), and he works well in the world of rules and reasons. That is his domain. In that realm, he appreciates informed judgment and delights in being daring. True to his cerebral bent, he loves to be rational (tag it Aristotelian eros), even if it leaves him the odd man out. In that sense, there is something peculiarly fascinating about him – that rara avis who seizes our attention even when we tend to turn away.    

What follows are the first in a series of questions I posed to the Judge about his life and life views. (Note: Some links will open in Firefox or Chrome but not in Safari.)

 ____________________________

Question:    Were you born Richard Allen Posner, or was Allen your first name? [Hat tip to Professor Peter Irons.]

Posner:       That’s true [about being named Allen]. But my parents always called me ‘Dick.'” [RC: The Judge has his law clerks address him as his parents did.]

Question:   You were exceptionally revealing in the New Yorker profile that Larissa MacFarquhar did back in 2001 – the story in which, among other things, you described yourself as “an imperfectly house-broken pet.” You also compared yourself to your late Dinah, “playfulbut with a streak of cruelty.” (Dinah has since died.) Two questions:

  1. Why? What prompted such unconventional candor?
  2. Do you have any regrets?

Posner:

  1. Larissa was very skillful at extracting unguarded comments from me. She is an excellent reporter. [RC: In a 2003 interview with Howard Bashman, Judge Posner said: “MacFarquhar. . . exaggerated my role in the law and economics movement, but that’s fine!”]
  2. No.

Question:      In what respects are you most like and unlike your parents?

Posner:         I share my mother’s love of literature, and my parents’ lack of religiosity (I believe the word “God” was never mentioned in our home). My father [Max] was introverted, like me. I didn’t share my parents’ politics, which were extremely left-wing. It’s unrealistic to think me much like my parents, as they were born in 1900 and 1901 respectively, into central European families with no money who immigrated shortly afterward to the United States. There is no comparison to my situation at and after birth, by which time (1939) my parents were prosperous, educated, and completely assimilated Americans.

Cleanth Brooks

Cleanth Brooks

Question:    You were an English major at Yale College and did your senior thesis under Cleanth Brooks (the famed figure of literary criticism). Your thesis was on William Butler Yeats’s late poetry. Why English, why Yeats? And tell us a little bit more about you senior thesis – its title and scope.

Posner:   My mother [Blanche] was a high school English teacher and started me off on literature when I was an infant — she read Homer and Shakespeare to me from a very early age. I majored in English at Yale because I was already steeped in literature and Yale had the best English department in the country. I discovered Yeats’ poetry and loved it and still do. I don’t recall the title of my senior thesis. I do recall the principal theme, which was that his poetry was “reflexive,” in the sense that much of it, I thought, despite its ostensible subject matter, was about poetry itself, which after all he new best.

Question:   What was your draft status? How did you navigate the whole military service matter?

Posner:    Deferment was automatic in my day (before the Vietnam War heated up) while one was a student. My first job after graduating from law school was as a law clerk at the Supreme Court. Justice Brennan, my boss, wrote a letter to my draft board before I started the clerkship asking it to defer me for the clerkship, which it did (it didn’t have to). During my clerkship year my wife had our first baby, and at the time (1963) that was an automatic deferment. I never heard further from anyone about the draft.

Alex Bickel

Alex Bickel

Question:    When you were the president of the Harvard Law Review (vol. 75, 1961-62), several prominent persons (e.g., Alexander Bickel, Felix Frankfurter, and Henry Friendly) published on your watch. Do you have any memorable stories you might share with us?

Posner:      Bickel was not a Harvard Law School professor (Yale instead), and I broke with tradition in asking him to write the Foreword to the Supreme Court section in the first issue.

I also got into some trouble with the faculty over publishing a very critical review by Frederick Bernays Wiener of an excellent revision [of Wigmore’s evidence treatise] by John T. McNaughton, one of the law school’s professors (later a key aide to Robert McNamara in the Vietnam War).

Question:       Were there any professors you had at Harvard who stood out in your mind? If so, who were they and why do you remember them?

Posner:         There were a number of excellent professors: in no particular order they were Paul Bator, John Mansfield, Abraham Kaplan, Derek Bok, Donald Turner, Walter Bart Leach, and (probably the best) John Dawson. I may have forgotten some others who were good. Turner’s field was antitrust, and he had a Ph.D. in economics from Harvard. We were friendly. To some extent, he sparked my interest in economic analysis of law.

Question:       How did Paul Freund come to select you for a clerkship with Brennan?

Posner:        He was an informal adviser to the law review so I got to know him pretty well, though I never had him in class. I was the president of the law review and the highest-ranking student by grades, so I was a natural pick for a Supreme Court clerkship. I didn’t apply—he just picked me. I actually wasn’t particularly interested in clerking.

Question:       You worked with Thurgood Marshall while he was Solicitor General. What was your opinion of Mr. Marshall back then?

Posner on Thurgood Marshall

He was a good boss in the sense that he backed the staff, which of course was all I cared about, but had rather little interest in the job. It was just a stepping-stone job. He had been a great trial lawyer, and I don’t think appellate law interested him particularly. Before becoming SG he was on the Second Circuit briefly, and after he was S.G. he, of course, was on the Supreme Court. I don’t think any of those jobs drew on his strengths, which as I say was as a trial lawyer.

 Question:      While in the S.G.’s Office you argued nine cases before the Supreme Court. Do any of those case stand out in your mind? Are you especially proud of your performance in any of them?

Posner:          I remember the antitrust cases, like Von’s and Schwinn, but I don’t really remember my briefs or oral arguments in them.

Question:     You were general counsel on President Johnson’s Task Force on Communications Policy. How did that come about and what sort of things did you do in that capacity?

Posner:       I probably was asked by the staff director, Alan Novak, but I don’t actually remember. My title of “general counsel” had no meaning. The task force had a small staff. I learned a lot of economics from our economist staff member, Leland Johnson, a very smart economist from RAND. I did most of the writing for the report. The report was influential in the deregulation movement, and also led to my being asked to do a good deal of consulting in telecommunication policy during my time as an academic.

Question:     What is your sense of the 60s counter-culture? Read More

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F.F. — Make of him what you will, but . . .

Felix Frankfurter

Felix Frankfurter

I want to recommend a relatively new article in the Journal of Supreme Court History. It is impressively researched, commendably thoughtful, and refreshingly balanced. Before doing so, however, permit me to say a few prefatory words.

It is hard to be fair when writing of those with whom we disagree, and harder still when we dislike their personal manner. Arrogant, argumentative, and devious – these are not the words that fair-minded scholars like to use unless the fit is fair. All of which takes us back in time to this man: Felix Frankfurter (1882-1965).

What to make of him?

As a Supreme Court Justice he was, in Mel Urofsky’s words, “a divisive figure whose jurisprudential philosophy is all but ignored today.” Others have been even less kind in their assessment of the temperament and jurisprudence of the Justice from Vienna. While Cass Sunstein has recently labored to revive respect for Justice Frankfurter and his judicial opinions, that effort may prove Sisyphean (save, perhaps, in a few discrete areas involving federal jurisdiction).

Still, there was more to Felix Frankfurter than the life he led on the Court between 1939 and 1962. The trajectory of his career (fueled by hard work, ambition, and brilliance) is an immigrant-come-to-America success story at its best. His work – first with Louis Brandeis and then on his own – to advance the cause of fair and humane labor practices exemplifies the Progressive movement in its glory. Then there was the role he played early on in helping to launch the ACLU. With a mix of courage and insight, he later called for a retrial for Nicola Sacco and Bartolomeo Vanzetti by way of an impressive lawyer-like article he published in the Atlantic in 1927; the article was thereafter expanded into a small book. And, of course, there is more, much more, which brings me back to that article I alluded to earlier.

Sujit Raman

Sujit Raman

Sujit Raman (the chief appellate lawyer in Maryland’s U.S. Attorney’s office) has just published an engaging and highly informative article. Its title: “Felix Frankfurter and His Protégés: Re-examining the ‘Happy Hot Dogs.’” It captures Felix in all his complexity and does so with objective nuance. With skilled brevity Raman also sketches the story of the Jewish immigrant’s struggle to assimilate, the Harvard Law student’s meritocratic success, the progressive’s desire to improve government when he went to work for Henry Stimson (first in New York and then in Washington, D.C), and then the Harvard professor’s cultivation of the best and brightest, whom he invited to his Sunday teas.

Above all, Sujit Raman’s real story is about Felix Frankfurter’s “greatest legacy,” namely, the “legions of students he trained and nurtured at the Harvard Law School, . . . who, in their own right, shaped the age in which they lived.” Consistent with that objective, Frankfurter’s “avowed intent as a professor was to instill in his students an interest in public service, and from his earliest days, he began collecting recruits for his crusade.” In time, they would come to be known as Frankfurter’s “Happy Hot Dogs” as Hugh Samuel Johnson tagged them.MTE5NTU2MzE2MjE5NDc1NDY3

Could he be snobbish? Yes. Could he be petty? Yes. Spiteful? Yes. Did he delight in manipulating matters from unseen sidelines? Yes again.

Clearly, F.F. had his psychological warts. Yet, when one steps back and beholds the man and this patch of his life work at a detached distance, he stands rather tall. Why?

Now, to cut to the chase: “Frankfurter was one of the New Deal’s intellectual architects as well as one of its most accomplished draftsmen of policy – yet he had no legislative portfolio or any official position in the Roosevelt Administration.” Moreover, adds Raman, “Frankfurter was the New Deal’s principal recruiting agent. He placed his protégés in all levels of government, and consequently his vision was carried forth, albeit indirectly, by his able lieutenants.” In sum, “the New Deal was in many ways the embodiment and culmination of Frankfurter’s life work.”

James Landis

James Landis

In the span of 28 pages (buttressed by 127 scholarly endnotes), Sujit Raman fills in many of the blanks in the Professor-and-the-New-Deal story. While he is cautious not to exaggerate Frankfurter’s role and influence, Raman’s account makes it difficult to deny the remarkable magnitude of Frankfurter’s unique impact on public law and its operation at a crucial stage in our legal history.

True, the “Happy Hot Dogs” story has been told before and from a variety of perspectives (see, e.g.,  here and here). Even so, Mr. Raman does what others before him have not quite done: he tells the story in a concise yet authoritative way and with enough panache to draw the reader back in history for glimpses into the exciting world of F.F. and his adept protégés – the likes of Thomas G. Corcoran (video here), Benjamin V. CohenJames M. Landis, David Lilienthal, and Charles Wyzanski, among others. They were all part of Frankfurter’s network, all “elite lawyers” hand picked because of their ties to F.F. and their “reformist inclinations.”

Whatever your opinion of Felix Frankfurter, his star may yet brighten anew, though probably not in the universe of Supreme Court history and jurisprudence. His true galaxy was elsewhere – in that realm where the “minds of men” move the gears of government to places only once imagined in classrooms in Cambridge.

Ask your librarian for, or go online or order a copy of, Sujit Raman’s illuminating article in volume 39 (March 2014, #1, pp. 79-106)) of the Journal of Supreme Court History. Better still, join the Supreme Court Historical Society. Either way, it will serve you well.

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FAN 17 (First Amendment News) — New Bio Reveals How Scalia Helped to Save a PBS Station

A soon to be released 650-page biography of Antonin Scalia reveals some interesting tidbits about the Justice and his career as it relates to free speech. The book is titled Scalia: A Court of One (Simon & Schuster, June 10, 2014). Bruce Allen Murphy, the Fred Morgan Kirby Professor of Civil Rights at Lafayette College, is the author of this heavily-researched and well-documented new biography. Professor Murphy’s previous judicial biographies include The Brandeis/Frankfurter Connection: The Secret Political Activities of Two Supreme Court Justices (1982), Fortas: The Rise and Ruin of a Supreme Court Justice (1988), and Wild Bill: The Legend and Life of William O. Douglas (2003).

Bruce Allen Murphy

Bruce Allen Murphy

Tellingly, the yet-to-be-distributed book has already been praised and criticized. That said, Murphy’s biography affords a new opportunity to revisit the history of Justice Scalia’s interaction with the First Amendment, both before and during his career on the Court. Readers of this column will recall Scalia’s recent call for law schools to place more emphasis on teaching the First Amendment. Recall, too, the Justice’s repeated criticism of the holding in New York Times Co. v. Sullivan.

Turning back the biographical clock, and as Professor Murphy recounts it, in January of 1971 Antonin Scalia (he was 35) went to work as general counsel for the Office of Telecommunications Policy. During Scalia’s tenure there President Nixon “became convinced that the national news and public affairs division of the Public Broadcasting Service . . ., which depended on government funding, was an ‘enemy’ group staffed by relentless liberal journalists. Nixon decided to try to take control of this agency, or, if he could not, to destroy it by cutting off its funding.”

Sometime later, word reportedly came down from the Nixon White House to “get a particular PBS station off the air.” According to an OTP official then working there, “Nino said, ‘hell, write back a memo that says it’s illegal.’ While Scalia acknowledged that [the purported illegality] was not true, he added, ‘Hell, they don’t know that.'” Subsequently, the OTP official “told a reporter that he did precisely what Scalia recommended and the White House soon dropped the issue.”

To be sure, there is more to this story, but I refer readers to the Murphy’s biography to learn how the matter ultimately played out, politics and all.

Before leaving the Murphy biography, readers might be interested to know that he devotes a chapter (#8) to the originalist debate over the meaning of the First Amendment as interpreted by then Circuit Judges Robert Bork and Antonin Scalia in the case of Ollman v. Evans (1984).

More on Justice Scalia

Speaking of Justice Scalia and free speech, the following is a list of his First Amendment free expression majority opinions authored during his tenure on the Roberts Court. Notice the vote margin when he is assigned to write for the Court.

→ Aside: Coming in 2015: A play titled “The Originalist

Federal Court Affirms Right to Videorecord Police 

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