Posner's Book Gives Insights, But Could Reveal More
Summary Judgment is American Lawyer senior writer Susan Beck's regular opinion column for the Litigation Daily.
Judge Richard Posner made headlines after he expressed some regret in his new book, "Reflections on Judging," about approving an Indiana voter identification law in 2007. The 32-year veteran of the U.S. Court of Appeals for the Seventh Circuit said he realizes that such laws are "now widely regarded as a means of voter suppression rather than of fraud prevention." My colleague Tony Mauro at the National Law Journal discussed Posner's comment in a recent column. Posner also pointedly criticized the U.S. Supreme Court's ruling in Citizens United as "naive," and blasted the court for tolerating political gerrymandering of congressional districts.
This is all interesting, but I wish "Reflections on Judging" were a better read. Unless you're fascinated by esoteric discussions of the merits of competing theories of legal philosophy, much of the book may make your eyes glaze over. It's frustrating that Posner, who is a strong writer and stresses the importance of judges communicating in a way that's accessible to laymen, doesn't devote more of his book to real-life events, instead of theory.
Still, this book contains enough nuggets of sharp observations, gripes, jabs and practical words of advice to lawyers that it's worth a look. One of Posner's main complaints is that the legal process has been made needlessly complex by everyone in the profession: judges, lawyers, law clerks and law professors alike. He hates jargon, legal cliches and fussy, tangled prose. I agree with all that. I'm not sure, however, it was necessary for Posner to engage in an exercise in one-upmanship by rewriting a a 1992 decision by the U.S. Court of Appeal for the D.C. Circuit. The court's original opinion in United States v. Morris--which addressed whether a defendant had used a gun in a drug trafficking offense—was 3,237 words long; Posner's snappy version is 602 words. His rewrite is much better, but did he really need to show off like this?
I was also surprised to see Posner mildly rebuke Supreme Court Justice Ruth Bader Ginsburg for not writing the first drafts of all of her own opinions, and often leaving that task to her clerks. Ginsburg has said that she doesn't have the time to write these drafts. Posner instructs the 80-year-old justice to manage her time better, and even shows her how. Assuming that it should take her four hours to write a draft of an opinion, he calculates that she just needs 64 hours a year to write her opinions, based on an average of 16 opinions a year. If she shaved 3 percent off the time of her other judicial tasks, he notes, she could find the time for this writing. This may be helpful advice, but I can't imagine drafting a Supreme Court opinion in just four hours. Posner must be a very fast writer.
Posner also offers the following opinion and comments:
• For appellate advocates: Whenever possible, use pictures, maps, diagrams and other visual aids in your briefs. But don't bring visual props to your oral argument. That's invariably a flop.
• There are fewer duds but also fewer stars among federal appeals judges these days. That's because of the combative judicial confirmation process, which has resulted in less variance in the federal bench.
• Yale Law Schools babies its students, while Harvard doesn't.
• "People who write well tend to be people who have read a great deal of classy prose, and there are fewer and fewer such people."
• Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit is an excellent writer. But students that Posner taught at the University of Chicago Law School years ago were "affronted" by his opinions, and preferred "pedestrian clerk-written opinions."
• Don't use legal cliches such as "totality of circumstances" and "abuse of discretion" and "chilling effect." Posner hates them.
• Good writing doesn't come easily to Posner. "My main reason for trying to write clearly (and I do try—I am not a naturally clear writer) is that unless I reduce a case to its simplest possible terms I can't be confident that I actually understand it and that my decision is right, or at least sensible."
This is good stuff, but I'm sure Posner has better stories to tell. As an active judge, he needs to be somewhat discreet and not reveal the full stories behind his cases. I'm hoping that if he steps down from the bench, he shakes off those shackles and gives us an unvarnished view of life from the bench. That would be a great read.