There are two names that have probably never been juxtaposed before. One is a judge on the Seventh Circuit Court of Appeals; the other Government and Media Counsel for the Maine Judicial Branch. What do they have in common? They are both retiring!
Mary Ann Lynch
After serving in this position for nine years, as of January 1, she is off to other things (running for office!). It will be a big loss to the Court. She was an invaluable resource, interfacing with the public, the Legislature, and the media, and will be sorely missed. Good luck, Mary Ann!
After 35 years on the bench, Judge Posner abruptly retired. Here’s an exit interview with him – “An Exit Interview With Richard Posner, Judicial Provocateur”, The New York Times. As he explains here, his immediate decision to leave the bench was precipitated by the lack of interest his colleagues on the bench showed to his proposal that he review all the memos of staff attorneys. In the Seventh Circuit, as in most circuits, staff attorneys work on pro se appeals, drafting memos that go to the appellate panel. He was of the opinion that pro se parties in civil actions were not being treated right, with their cases dismissed on technical grounds, and he could help, making “whatever editorial suggestions – or editorial commands” he thought necessary.
We’ve discussed Judge Posner before (Truthseeking and Judge Posner, Wiki-citings, For the Record, Too big Abner), and, in particular, his predilection to get on the computer and do his own fact research, which I said and still think is a bad idea.
To start, here’s what I like about him – he’s a cat lover. Not only that, he likes Maine coon cats! Here’s a photo of his current feline, Pixie.
Beyond that, there is no question that Judge Posner is really, really smart. I think his career reflects certain characteristics that not always, but sometimes, accompany such braininess.
First, they can change their mind a lot. He started out a liberal, clerking for Justice Brennan and working for Thurgood Marshall, then swung to the right, then back leftwards. He has also noted how he would decide certain matters differently if presented to him again. Oliver Wendell Holmes was a little like this – search long enough and you can find a decision by him that takes one side and then another on most subjects. I think this mutability sometimes comes from the fact that if you are really, really smart, then you can understand and articulate all sides to an issue. Combine that with a low threshold for boredom, and you may seek new worlds to conquer, not only by taking on different subjects of interest, but new perspectives.
Second, relatedly, if you change your mind a lot, then potentially you aren’t going to think precedent is important as compared to what you personally think is the fair thing in a particular case, because, being such a brainy person, you must be right. See “Point Person Q&A: Outspoken judge Richard Posner on the Constitution, his fellow judges and Antonin Scalia”, dallasnews.com where, among other things, he poo-poos stare decisis. And because other people aren’t as smart or hardworking as you are, they don’t do the job for their clients, pro se or otherwise, that you think they should be doing, which can lead you to step in and start doing it for them. Even the Constitution isn’t sacrosanct, and Judge Posner created a stir when he seemed to minimize the importance of adhering to Constitutional principles. See that Dallas News article, along with “Supreme Court Breakfast Table”, slate.com. (He backed off, a little, from these remarks later). In his statement in retiring, he said “I am proud to have promoted a pragmatic approach to judging during my time on the Court, and to have had the opportunity to apply my view that judicial opinions should be easy to understand and that judges should focus on the right and wrong in every case.” “Richard Posner announces retirement”, Chicago Daily Law Bulletin. Elaborating on this theme in his New York Times interview, he said: “I pay very little attention to legal rules, statutes, constitutional provisions.” “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”
Pragmatism and the judge’s sense of right and wrong of course have their place, but as for me, I wouldn’t want my case decided by what Judge Posner thought personally was fair, based on whatever was in the record supplemented by whatever additional research he decided to undertake. I would want my case decided by application of legal principles that a whole lot of people from diverse backgrounds have worked out over time, based on a record produced in a transparent manner and subject to the rules of evidence. I prefer the Rule of Law over the Cult of Personality, even if that personality is brilliant (and likes cats.)
In terms of legacy, they say Judge Posner’s rulings have been cited by other judges more often than any other. But I wonder how much more impact he could have made with a more collegial approach. Not a lot of people would describe Richard Posner as warm and cuddly (although there are some photos out there of him with Pixie …). Showing respect for other jurists and his historical predecessors, instead of trash talking, might have resulted in him achieving more concrete change. For example, opining that “most judges” regard pro se litigants as “kind of trash not worth the time of a federal judge,” (“Posner: Most judges regard pro se litigants as ‘kind of trash not worth the time'”, ABA Journal ) is probably not how to win over colleagues to any proposal you have on making things better for those litigants.
For an excellent summary of Judge Posner’s life and career, see “Rhetoric and Law”, Harvard Magazine There’s also a New Yorker profile (with a picture of him and his cat) – “The Bench Burner”, The New Yorker.