When one considers that the appellate judge is the central figure in Anglo-American jurisprudence, the dearth of evaluative writing on individual judges that is at once systematic, nonpolitical, and nonpolemical is remarkable. – Richard Posner (1990)
This is the eleventh and next-to-last installment in the Posner on Posner series.
William Domnarski is the author of a forthcoming biography of Judge Richard Posner. The table of contents for that biography is set out at the end of this post.
Mr. Domnarski is a California-based lawyer who both practices law and teaches English. He is the author of four books:
Swimming in Deep Water: Lawyers, Judges & Our Troubled Legal Profession (American Bar Association, 2014) (See here re Judge Richard Kopf’s comments on this book)
Federal Judges Revealed (Oxford University Press, 2009)
The Great Justices: 1941-54 — Black, Douglas, Frankfurter and Jackson (University of Michigan Press, 2009)
In the Opinion of the Court (University of Illinois Press, 1996)
Mr. Domnarski has likewise authored many scholarly articles (on law and also on literary criticism), including an article titled “The Correspondence of Henry Friendly and Richard A. Posner 1982-86.” In the Posnerian spirit, in 2012 he published a New York Times op-ed titled “Judges Should Write Their Own Opinions.”
William Domnarski has been a lawyer and legal writer for 30 years. He is the author of three previous books on federal judges, as well as a book on the nature of practicing law. He has a JD from the University of Connecticut School of Law and a Ph.D. in English from the University of California, Riverside. (Publisher’s statement)
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Question: How did you first come to know Richard Posner?
William Domnarski
Domnarski: It was through some correspondence in the late 1980s on Tom Wolfe’s Bonfire of the Vanities (1987). I challenged his 1988 Yale Law Journal review essay concerning the novel; he was gracious enough to concede that there was something to my point. A correspondence over the years then ensued.
Question: You have written about Judge Posner before. Tell our readers a little bit about that.
Domnarski: In 1996 I wrote a book on judicial opinions that featured a lengthy chapter on Posner’s opinions. In that chapter I argued that he was writing opinions the likes of which we had never seen before. In that regard, a few years ago I was delighted to find at the Harvard Law School a 1983 letter from Henry Friendly to Posner (they corresponded during the last four years of Friendly’s life) in which Friendly wrote essentially the same thing to Posner, this as part of his assessment that Posner was the greatest appellate judge of his generation.
It was from Judge Friendly . . . that Posner learned the surprising truth that Holmes was wrong when he said that you can live greatly in the law. . . . With judging, Posner feels, you cannot know enough about one thing. The knowledge is too much on the surface because so much is required. To live greatly as an intellectual contributor, Posner has determined that he must go beyond law. – William Domnarski (1996)
Question: Oxford University Press is publishing your forthcoming biography (with David McBride as your editor). Had you submitted the book elsewhere or did you go to Oxford because you had published with that house before?
Domnarski: I had a contractual obligation to go to Oxford first with my proposal because it had published my last book. That said, I would gone there anyway because Oxford is so good at what it does.
Question: How long will your biography be?
Domnarski: It will probably be a happy medium, around 125 thousand words [RC: Oxford lists it at 336 pages]. Long books turn most readers off, and a short book just wouldn’t let me cover all that I need to cover.
Question: When is it scheduled for publication?
Domnarski: It should be available sometime during the Spring-Summer of 2015.
Question: What kind of response did you get from the people you were able to interview?
Answer: First of all, almost everyone, wanted to talk to me. There were only three or four people who took a pass, one rather huffily. Nearly everyone I contacted long thought that there was something special about him. It was as though they knew that they would be asked about Posner sometime in the future.
Question: Did you interview any sitting Justices?
Domnarski: In an earlier book, I interviewed Justice Antonin Scalia and then Judge Stephen Breyer about Posner. Thereafter, I met once with Justice Breyer at the Supreme Court, this when I was thinking about taking the Posner biography on as a project.
Question: There was a wide conceptual gap between the thought of the late Ronald Dworkin (1931-2013) and that of the Judge. Did you have an opportunity to interview Professor Dworkin? If so, what can you tell us about that?
Domnarski: I suspect Dworkin would have been willing to talk (only a few have declined), but he was ill when I wrote to him. Thus, I did not get a chance to interview him. I did, nonetheless, talk with some people close to Dworkin. They provided me with some information and insight about how Dworkin responded to Posner when they famously clashed (helmets flashing) at a 1979 conference on the issue of wealth maximization. [RC: See Guido Calabresi, “An Exchange: About Law and Economics: A Letter to Ronald Dworkin“]
Question: What individual(s), living or dead, do you think has had the greatest impact on the Judge’s thinking? And why?
Domnarski: Three great economists come to mind – Aaron Director, George Stigler, and Gary Becker. From them Posner learned economic analysis and the way that it can illuminate the connections, large and small, between economics and the way we live.
Publisher’s Blurb
Now, for the first time, this fascinating figure receives a full-length biographical treatment. In Richard Posner, William Domnarski examines the life experience, personality, academic career, jurisprudence, and professional relationships of his subject with depth and clarity. Domnarski has had access to Posner himself and to Posner’s extensive archive at the University of Chicago. In addition, Domnarski was able to interview and correspond with more than two hundred people Posner has known, worked with, or gone to school with over the course of his career, from grade school to the present day.
THE CHALLENGES OF WRITING POSNER’S BIOGRAPHY
Question: What was the biggest challenge in doing this biography?
Domnarski: The easy answer is the staggering amount of paper I had to push through. I have been on Posner’s slip opinion mailing list (now sent via e-mail) since the late 1980s. I read the opinions as they came out, but once I took on the project I had to read them all over again, this time annotating them – there are some three thousand of them. Then there are the dozens of books and the hundreds of articles. But that wasn’t the hardest part. The hardest part was the ongoing challenge of trying to figure out what mattered in Posner’s career and how I could make that matter to my readers.
Judicial biography is one of the most difficult genres in which to write. Few, if any, writers meet the challenges that the genre presents. In Posner’s case, you are essentially writing a book about someone who sits at a desk and reads and writes. It’s all a judgment call, I guess, about what one thinks matters most. The hope is that one will have answered all or most of the questions the reader will have, and this in an appealing and intelligible way.
Question: What has it been like to work with the Judge in writing this biography? Have there been any awkward moments?
Domnarski: He’s been a prince about cooperating with me. The book is not, however, an authorized biography, by which I mean that I have no obligations to Posner and he has no right to review the manuscript or to insist on changes.
The Judge agreed to give me complete access to his archive at the University of Chicago Regenstein Library. He also agreed to sit for recorded interviews, and to answer any questions I might e-mail him. On that score, I would sometimes send e-mails at eleven or twelve in the evening (California time) and get an immediate response. He also took me through three boxes of childhood memorabilia, including baby pictures and the report cards.
The only moments that could possibly come close to being awkward were a few times when I relayed or just mentioned a story someone told me (I interviewed people dating back to his grade school years). Sometimes he remembered the story differently or said that what I had been told did not happen. Of course, that is not unusual as any biographer knows.
Question:
Given the complexity of his character, the volume of his work, and nature of his jurisprudence, how did you go about juggling all those biographical balls while at the same time moving your narrative along?
How analytical will your biography be? That is, are there any extended critiques (by you or others) of his opinions and jurisprudence generally, or is your book largely descriptive?
Domnarski:
It was easy enough to write separate chapters on Posner’s early years, such as chapters taking him through high school and then through college at Yale and law school at Harvard. And it was also easy grouping together Posner’s various Washington jobs and then writing a separate and fairly long chapter on his full-time teaching years at Chicago. The hard part was dealing with all those opinions and all those books and articles once he went onto the bench. I’ve tried to move the narrative forward by dividing the mass of work by decades and following different themes and threads in each decade so that the reader always has something fresh.
I analyze why his opinions are special and try to pinpoint his contributions to the law by looking at the way his opinions have been used by other circuit court judges. I also track how the Supreme Court has responded to his opinions when they were reviewed by the High Court. This is as part of my broader interest in tracking a kind of marketplace response to his jurisprudence. I do the same with his many books. I don’t argue, though, that he is the most influential judge of his time or that he is the most respected. I take these points as givens and try to explain how and why his reputation is what it is. Put differently, I have tried to avoid jurisprudential analyses that I think weigh down other judicial biographies.
Question: The last major biography of a federal court of appeals judge was David Dorsen’s Henry Friendly, Greatest Judge of His Era (2012), also a practicing lawyer-authored biography. What was your sense of that biography and how does it differ in form and style from the one you are doing of Judge Posner?
Domnarski: For all of its strengths, the Dorsen book left me wanting because I wanted to hear more about Judge Friendly from people who knew him at various stages of his life. That’s the difficulty with writing about someone who is so far in our past such as Friendly, who died in 1986 – like him, his contemporaries have all passed.
There are, to be sure, inherent problems in writing about a subject based in part on information gathered in interviews in the same way that there are inherent problems in interviewing a subject to gather information. But from the point of view of being able to make the subject come alive for the reader, this kind of information is first tier, nearly equal I’d say to what the subject writes in private correspondence. (in that respect, I had access to Posner’s many letters by way of his Chicago archive.)
THE “BRASH YOUNG MAN”
Question: About how many persons have you interviewed? And can you give us some examples of the folks you contacted?
2009 book by William Domnarski
Domnarski: I’m on the other side of two hundred. I just followed Posner’s career path and tried to talk with as many people as I could track down from the different periods in his career. I had to search around a bit to reach people from grade school, high school, and college. Once I got to the law school years, however, people were easy to find because in most instances they were still practicing law.
I spoke with people from Posner’s law school and law review days and was lucky enough to talk with Derek Bok, the former president of Harvard, who had taught Posner in 1960. The first thing he told me was that he still remembered exactly where Posner sat in the class. “Brash young man,” he said and then explained what made Posner so special, first as a student, then as an academic, and finally as a judge.
I also spoke with people who worked with Posner at in the Solicitor General’s office in the 1960s. And then there was his Brennan co-clerk (the wonderful Robert O’Neil), and his co-clerk at the FTC when he worked under Philip Elman there. And then there were the people from the presidential communications commission Posner worked with before going to Stanford.
I contacted people from Posner’s year at Stanford (1968-69) and then at least thirty people from Posner’s full-time teaching years at Chicago — faculty and students alike. Additionally, I interviewed twenty or so of his former law clerks. I was also fortunate enough to interview some twenty federal circuit court judges about Posner, including a few from the Seventh Circuit.
POSNER & THE SUPREME COURT
Question: Based on your research, which Supreme Court Justice cites to or quotes from Judge Posner the most?
Domnarski: Justice John Paul Stevens (coincidentally from Chicago) leads all time, while on the current court Justices Stephen Breyer and Antonin Scalia are tied. Justice Scalia would otherwise be leading but he has not quoted or cited Posner by name for a few years. I wonder why.
Question: If he sat on the High Court, what do you suppose would be his greatest challenge?
Domnarski: What to do with all his free time. [RC: In 2013, Posner declared: “[T]he Supreme Court Justices write very, very few majority opinions. Last year they saw 74 cases. Divide that by nine and that’s a little more than eight opinions a year. That’s ridiculous! I write around 90 opinions a year.”]
The question is more interesting if turned around to ask: what would be the biggest challenge for his colleagues? Posner would have changed the way we think about law, the Supreme Court, and Supreme Court Justices. If he had been elevated to the Court, he would have shamed the non-pragmatists into dropping their pretensions and acting like judges.
Question: What would you consider to be the biggest mistake Richard Posner has made in his life?
Domnarski: Some might say that writing about selling babies in the 1970s was a big mistake. [RC: The article, co-authored with Elizabeth Landes, was titled “The Economics of the Baby Shortage” (1978) In a 2003 interview with Howard Bashman, Posner maintained that the article had been mischaracterized.]
Did it affect his chances at the Supreme Court? I don’t think so because he never had a chance for a seat on the Court. That, at least, is what I was told by appointment insiders then in the Reagan Administration. They made it clear that they wanted an originalist nominee who would [take the stance] demanded by the party base.
To return to your question, I don’t know if there’s been something that qualifies as a mistake, in part because on the court and in his academic writing – as with wealth maximization, for example – Posner has been more than willing to say that he has been wrong and has then set out to correct himself.
Of course, given his great gifts he might have been better off (though we would have lost much) if he had not taken a career in law as a sort of default option and gone into a field that tested him more.
THE GRISWOLD “HIT”
Question: Can you share with us (if only by way of a sneak preview) anything noteworthy your researched turned up in connection with Richard Posner’s years at Harvard and his service as President of the Law Review?
Dean Erwin Griswold
Domnarski: You mean aside from the drinking stories or the law review dinner that went horribly wrong? Derek Bok was not the only person to have clear memories of Posner from the Harvard Law School years. Fellow students recalled for me incidents from class and even things Posner said in class that set instructors back on their heels.
Let’s just say that Richard Posner made a lasting impression from his years at Harvard, so much so that Erwin Griswold (then Harvard’s dean) tried several years later, when he was Solicitor General, to scuttle Posner’s chances at Stanford by writing to the hiring committee without being solicited. Griswold told them not to hire Posner because of things he had done at Harvard.
Question: In his 1994 biography of Learned Hand, Professor Gerald Gunther wrote: “Hand’s personal traits shaped his style of judging . . . .” Does the same hold true for Judge Posner? If so, please explain how.
Domnarski: Shakespeare (or one of those smart fellows) wrote something to the effect that style is the measure of the man. In Richard Posner’s case, that is absolutely true. This comes out in both Posner’s opinions and in the way he participates in oral argument. A pretty good argument can be made that Posner did not find his voice as writer — this despite all that he had written before going to the bench – until he began to work in the genre of the judicial opinion.
Posner makes the opinion a function of both his personality and his mind. It is a great mind, perhaps the greatest ever to take to judging. As for the personality part of the equation, to say that it is complex just begins the analysis. And as for Posner on the bench, we have the recordings available on the Seventh Circuit website to show that his performance at oral argument is every bit as influenced by personality as are his opinions.
HOW BEST TO ARGUE ONE’S CASE
Question: Beyond being prepared, what must a lawyer keep in mind if he wishes to do well in oral arguments before Judge Posner? And what must she avoid?
Domnarski: Here is my advice: If asked a “yes” or “no” question, be sure to answer “yes” or “no.” Do not cling blindly to the advocate’s role — be willing to zoom out to handle broader policy questions while making it clear that you are not answering such questions simply as an advocate unmindful of other important considerations. Think of oral arguments as a conversation in which you are an equal, so long as you are willing to work hard enough to hold up your end of the conversation.
LAW, LITERATURE & SCIENCE
Question: Judge Posner has revealed his great respect for and admiration of Justice Holmes.
Why do you think that is so?
How is Posner most unlike Holmes?
Domnarski:
At bottom, Holmes was a literary man, not just highly literate (as in great amounts of reading). Holmes was a literary man for whom writing (as a function of reading) mattered most of all. Ditto (I think and so argue) for Posner.
Holmes in “The Path of the Law” famously wrote that the lawman of the future would not be a black letter lawman, but a man of statistics and a master of economics. Holmes was not that kind of lawman and is fairly famous for being indifferent to facts and information beyond a certain point (he wanted to know enough to go safely on). By contrast, Posner is not just the man of statistics and master of economics, he is insatiable when it comes to information. The Internet was made for Posner; it feeds his mind’s hunger.
Question: We have seen the Judge’s views evolve on the question of same-sex marriage. Have you seen any signs that his views on the question of animal rights have changed since 2000 when he wrote on the subject for the Yale Law Journal? Recall, it was at that time that he said we needed more “facts [to] . . . stimulate a greater empathetic response to animal suffering.” That was 14 years ago. Have you seen any development of his views in this area?
Domnarski: I don’t think Posner has returned to the issue of animals rights following the piece you mention, which was a review of a book on animal rights [by Steven Wise]. In that regard, there was also a panel presentation that same year with the book’s author along with Richard Epstein. During that discussion Posner took the same position – that is, he opposed extending the full panoply of civil rights remedies to animals. He thought that legislation (much of it already existing) prohibiting animal cruelty was sufficient.
There’s a good essay to be written on Posner and animals, especially in light of the animal rights movement. (Aside: He makes clear in his writings that those who treat animals badly are real losers.)
POSNER UNBOUND
Question: Say a few words about Posner’s main concerns about judging.
Domnarski: Start here: In a letter from the 1990s Posner wrote that his jurisprudence, in a nutshell, could be described as wanting to nudge the judicial game a little in the direction of the science game. I think he is more interested in doing this now than ever before. In my view he wants law to be more informed by the social sciences and wants judges to think likewise. He accepts the idea judges must make tough calls (as opposed to being a mere umpire, for example). That said, he thinks that judicial judgment calls must go beyond what he labels “priors” (as in prior dispositions). The judicial call must be grounded in evidence and reason. That’s where the social sciences come in for him.
Question: What can you tell us about the Judge’s interest in the thought of Friedrich Nietzsche? And how far does that interest extend?
Domnarski: Posner like Justice Holmes (or because of Holmes) has been attracted to Nietzsche. That brand of thought drives the pragmatism and skepticism positions Posner has championed and practiced; he wants to move away from morality-based judgments to judgments based on empiricism.
For a time, my book’s working subtitle came from Nietzsche’s apt quotation “I am not man, I am dynamite.” That quotation from Ecce Homo captures Posner’s career-long interest in stirring things up in a way that would have won a nod from Nietzsche.
Question: What word or phrase best captures Richard Posner?
Domnarski: Promethean.
Question: Posner has written that “we all wear masks in public.” Based on what you know of him, what mask does he wear?
Domnarski: The question goes to an important theme in my book. I know you’ll think that I’m punting, but I think I’ll have to say that you’ll need wait to read the book for my answer.
Table of Contents
Preface
Part I
Youth & Education
Parents
Grade & High School
Yale College
Part II
Harvard Law School
Supreme Court Clerkship with Justice Brennan
Assistant to Philip Elman at the Federal Trade Commission
Solicitor General’s Office
President’s Task Force on Telecommunications
Stanford Law School
Part III
Economic Analysis & Economic Analysis of Law
Building a Career & Spreading the Word of Economic Analysis of Law
Consulting Work & Founding of Lexecon
Seventh Circuit Judgeship Opportunity
Part IV: 1982-1989
Court of Appeals for the Seventh Circuit
Friendship with Henry Friendly
Judicial Opinions Like no Others
Developing Reputation
Studies in the Federal Courts
Law & Literature & Jurisprudence
Part V: 1990-1999
Work on the Court & Reputation
Posner Revealed in Correspondence
Studies on Old Age, Sex, Clinton Impeachment, Public Intellectuals & Jurisprudence
Mediator in Microsoft Litigation
Part VI: 2000-2009
Work on the Court & Reputation
Studies in the 2000 Election
National Security, the Economy in Peril, & the Nature of Judging
Part VII: 2010-2014
Work on the Court & Reputation
Studies on Judicial Performance & Behavior
Feud with Justice Scalia
The 12th and final installment in the Posner on Posner series is titled “Afterword: Posner at 75 – It’s my Job.” It will be posted on Monday, January 5, 2015. Re earlier posts:The first installment can be found here, the second here, the third here, the fourth here, the fifth here, the sixth here, the seventh here, the eighth here, the ninth here, and the tenth one here.