For those of you who are unfamiliar with contemporary legal scholarship, Posner, who joined the 7th circuit in the early 1980's, is one of the most important legal scholars of his generation, and has written an endless supply of articles and books on virtually every legal subject imaginable, all the while continuing to produce a steady stream of extremely well written appellate opinions, which have made him perhaps the most influential lower court judge living today. He is a man of supreme intelligence, boundless energy and enormous learning. It is impossible for me to list the number of contributions he has made to legal scholarship. The quality of his accomplishments is such that he would grace the Court, and not the other way around. It would be fitting too, for him to be able to finally take a seat on the same court as his acknowledged idol and role model, Oliver Wendell Holmes, Jr.
I don't dispute any of this. Posner is indeed a formidable mind and extremely influential, both with other judges and the overall community. But there's one big problem: Posner's intellectualism is a mere cover for his anti-individual rights ideology. At his core, Posner believes the principal mission of government is not to protect individual rights, but to balance the whims and desires of competing interest groups. He is a pragmatist in the purest (and least flattering) sense of the term. It's not that many of his rulings aren't good, it's just that he often employs an unsound intellectual approach to reach his result.
Of course, I could make the same criticism about dozens, if not hundreds, of federal judges. And therein lies much of the problem with the debate over who to put on the Supreme Court. Seven of the current nine justices are themselves former court of appeals judges like Posner. Intermediate appellate judges are not always the greatest legal minds, and that makes them more susceptible to the hard-core pragmatism of a Richard Posner. Look at the last four Supreme Court justices appointed: David Souter, Clarence Thomas, Stephen Breyer, and Ruth Bader Ginsburg. Three of these justices form the core of the Court's current pragmatist elite, while the fourth, Clarence Thomas, was appointed principally because of his race, and although he's emerged as a fine justice overall, he places some scary limits on the protection of individual rights, such as last Term's case where Thomas opined an opinion essentially permitting unlimited drug testing of students in government schools. All four, of course, were also intermediate appellate judges before being promoted.
One of the criticisms I've had of the makeup of agencies like the Federal Trade Commission is that the membership is monopolized by a self-appointed elite from within the legal community. A similar criticism may be justified of the Supreme Court. Appellate judges are not inclined towards issuing principle-based decisions; instead, they seek pragmatic remedies limited to isolated facts of the case. What's needed to lead the Court in the post-Rehnquist age is not some cloistered academic or pragmatist appellate judge, but an individual with both solid legal experience and an understanding of how principles operate in the real world, by which I mean the economic marketplace. Especially given the law's increasing hostility towards individual rights in the economic sphere, the next chief justice in particular must possess a solid working knowledge of the business world and how it needs to interact with the law.
Several months ago, I half-jokingly suggested the next chief justice should be Paul Tagliabue, the commissioner of the National Football League. Before being elected to his present post in 1989, Tagliabue was the NFL's chief counsel on antitrust and other matters. He was among the chief lawyers who defended the league from a number of unfounded antitrust actions in the 1980s. Now, I have no idea if Tagliabue would want the job, or even if his judicial ideology is fully compatible with an individual rights theory of government. What I am suggesting, however, is that the White House needs to think outside the box for its next Supreme Court appoinment, and consider the ideological consequences beyond mere short-term political strategy. Nominating someone like Tagliabue—a lawyer who became a successful CEO in a hostile legal climate—would serve as a major shock to the self-appointed appellate elite who believe only they are capable of telling the rest of us what the law should be.
Another reason to back Chief Justice Tagliabue: The Supreme Court in recent years has become more fractured and divided, at times unable to produce a unified opinion in key cases. Given Tagliabue's track record getting 32 NFL owners to work together—no small feat, given they're all wealthy individuals with competing agendas—I would think getting eight Supreme Court colleagues to work together better would be a walk in the park.