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(ABA Journal)   Why doesn't the most respected circuit judge in America have any interest in joining the Supreme Court? "It isn't a real court"   (abajournal.com) divider line 53
    More: Obvious, Supreme Court, Posner, concurring opinions, majority opinions, House of Lords, Dick Tracy characters  
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1901 clicks; posted to Politics » on 15 Nov 2013 at 12:38 PM (1 year ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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ZAZ [TotalFark]
2013-11-15 12:02:58 PM  
Also, he has expressed enough opinions in his career that he would wish he were treated as kindly as Bork once the opposition got through with him. Unless the President has a solid ultrasupermajority, something he wrote in his books is going to come back to haunt him. Like, to pick the first example that comes to mind, his moral relativism with respect to ancient slavery.  (I forget the book. I'll try to look it up if anybody cares.)
 
2013-11-15 12:03:58 PM  
Posner's probably had a more influential career than many Supreme Court Justices.
 
2013-11-15 12:08:33 PM  
Hell, you know you have it made when you are a Circuit judge generally cited by the Supremes.  

/STOP in the name of laws!
 
2013-11-15 12:43:17 PM  
 it's like a House of Lords.


It's like a game of thrones played on top of a house of cards, checkmate!
 
2013-11-15 12:45:04 PM  
He hates the bluebook.
 
2013-11-15 12:45:35 PM  
He's right. Again.
 
2013-11-15 12:45:53 PM  
Supreme Court? "It isn't a real court"

So the Supreme Court is a 9-member version of Judge Judy?
 
2013-11-15 12:46:04 PM  
FTA:
Posner also reveals in the interview that he works from home at least half the time, and one reason is his cat, Pixie. "I'm a very big cat person," Posner says. Pixie is affectionate and "her little face falls" if Posner or his wife leaves the house. "The cat wants us at home," he says.

Cat thread!
 
2013-11-15 12:46:24 PM  
Now all we need is a judge to rule that linking mobile versions of sites should be illegal and we'll be golden.
 
2013-11-15 12:47:40 PM  
"Well, I don't like the Supreme Court," Posner says. "I don't think it's a real court. I think of it as basically ... it's like a House of Lords. It's a quasi-political body. President, Senate, House of Representatives, Supreme Court. It's very political. And they decide which cases to hear, which doesn't strike me as something judges should do. You should take what comes. When you decide which case to hear it means you've decided the cases ahead of time.

So you  take every case that is appealed to your level?  You would even take one if I argued up a trafic ticket?
 
2013-11-15 12:59:31 PM  
"I just wouldn't enjoy the Supreme Court," Posner says. "Absolutely no desire to be on it."

That right there sounds like a damn good reason to nominate him.
 
2013-11-15 12:59:49 PM  

Saiga410: So you take every case that is appealed to your level? You would even take one if I argued up a trafic ticket?


Posner sits on the seventh circuit.  Although all of the Courts of Appeals have some discretion to hear appeals from some administrative agency decisions and rulemaking, the largest share of this type of case is heard by the D.C. Circuit.

Almost all cases that reach a Court of Appeals are heard by a panel of three judges that are selected randomly from the available judges.  So to answer your question, pretty much yes.

Posner is the most-cited American legal scholar of the last century and produces about 90 opinions a year.  You might want to choose a different angle to attack him with than "not hearing enough cases".
 
2013-11-15 01:00:57 PM  
law and economics is a travesty, but Posner has a point
 
2013-11-15 01:03:30 PM  
I don't really understand this complaint. Of course the Supreme Court is political. The whole idea of the Supreme Court is that it mediates only the most contentious, high profile and hard to solve cases. If something was really "non-political" and could easily be interpreted by applying some kind of "judicial formula", it gets resolved way before it gets to the Supreme Court. The only issues that get to the Supreme Court are political ones.

This is why John Roberts "balls and strikes" crap was so odious. He was either lying, or is deluded.
 
2013-11-15 01:03:44 PM  

Robin Hoodie: law and economics is a travesty, but Posner has a point


Not trying to start a fight, but how so?

/to put my cards on the table my mentor was a Posner clerk and well published in L&E.
 
2013-11-15 01:04:31 PM  

Saiga410: "Well, I don't like the Supreme Court," Posner says. "I don't think it's a real court. I think of it as basically ... it's like a House of Lords. It's a quasi-political body. President, Senate, House of Representatives, Supreme Court. It's very political. And they decide which cases to hear, which doesn't strike me as something judges should do. You should take what comes. When you decide which case to hear it means you've decided the cases ahead of time.

So you  take every case that is appealed to your level?  You would even take one if I argued up a trafic ticket?



Appeals of final orders of the relevant Federal district courts to the 7th Circuit (and all Federal Circuit Courts) are as of right--they don't have the opportunity to turn them down like the SCt.
 
2013-11-15 01:06:49 PM  

Saiga410: So you  take every case that is appealed to your level?  You would even take one if I argued up a trafic ticket?


Appeals courts don't have the option of declining cases. Every claimant has the right to appeal their case up to the circuit level; only the USSC is given the privilege of declining to hear a case.
 
2013-11-15 01:08:19 PM  

DamnYankees: I don't really understand this complaint. Of course the Supreme Court is political. The whole idea of the Supreme Court is that it mediates only the most contentious, high profile and hard to solve cases. If something was really "non-political" and could easily be interpreted by applying some kind of "judicial formula", it gets resolved way before it gets to the Supreme Court. The only issues that get to the Supreme Court are political ones.

This is why John Roberts "balls and strikes" crap was so odious. He was either lying, or is deluded.


Its not a complaint per se, its an indication as to why Posner doesn't want the job.  He wants to do the grunt heavy lifting that circuit judges do - actually making and refining laws, rather than the rarefied political theater done at the SCOTUS.  Sounds a lot like Lord Denning, or J.T. Kirk.
 
2013-11-15 01:08:47 PM  
He makes good points... The 'political' part bothers me, but the problem is that even when the President isn't trying to make a political statement with whomever he appoints, the Opposition Party DOES make it political, and it just goes 'round and 'round...
 
2013-11-15 01:12:44 PM  

DamnYankees: The only issues that get to the Supreme Court are political ones.


Not true, unless you define politics so expansively that it covers everything.
 
2013-11-15 01:12:47 PM  

Teiritzamna: Robin Hoodie: law and economics is a travesty, but Posner has a point

Not trying to start a fight, but how so?

/to put my cards on the table my mentor was a Posner clerk and well published in L&E.


not trying to fight either, but in the hands of jurists and politicians L&E justifies both sides (and everything in between) of virtually everything. efficiency is a fun goal, but the question quickly becomes one of who is doing the measuring
 
2013-11-15 01:16:10 PM  

Captain Dan: DamnYankees: The only issues that get to the Supreme Court are political ones.

Not true, unless you define politics so expansively that it covers everything.


gotta go with Capt Dan on this one, plenty of SC cases are just the intersection of old (or poorly drafted) law and weird problems that need clarification
 
2013-11-15 01:18:08 PM  

Robin Hoodie: Captain Dan: DamnYankees: The only issues that get to the Supreme Court are political ones.

Not true, unless you define politics so expansively that it covers everything.

gotta go with Capt Dan on this one, plenty of SC cases are just the intersection of old (or poorly drafted) law and weird problems that need clarification


Yes, fair enough. I didn't express what I meant well. I mean, presumably, Posner wouldn't mind justicing those cases if he were on the SC. My point was that when political cases get to the SC, they get their for a reason, and its not a failure of judicial-ness. That's all I meant.
 
2013-11-15 01:19:41 PM  

USCLaw2010: He hates the bluebook.


That's like hating Hitler or the Yankees.
 
2013-11-15 01:23:38 PM  

Saiga410: So you take every case that is appealed to your level? You would even take one if I argued up a trafic ticket?


Maybe you aren't aware of this, but federal Courts of Appeal--on which Posner sits--are not discretionary appellate courts.  Every person whose case is decided in a federal trial court (federal district court) has a full right to appeal to the Court of the Appeal, and the Courts of Appeal have to hear every appeal that's (properly) filed in their court--they don't get to pick and choose which appeals they'll hear.  So his answer to your question would be yes.  The Supreme Court, on the other hand (and the high courts of each state that, like the federal system, has an intermediate level of appellate court that hears all appeals from the trial courts--which is most of them) chooses which appeals it will review, and of course it chooses to review only a tiny percentage of them.

/I'm still not a fan of Posner, though
 
2013-11-15 01:23:43 PM  

Captain Dan: DamnYankees: The only issues that get to the Supreme Court are political ones.

Not true, unless you define politics so expansively that it covers everything.


Politics does cover everything- Politics is how we structure society, at every level. Put two people together in a room and you have politics.

Also, have any examples you'd like to cite, or are you just one of the people who doesn't realize that supposedly technical cases on standing are ideologically driven 9 times out of 10?
 
2013-11-15 01:24:39 PM  

DamnYankees: Robin Hoodie: Captain Dan: DamnYankees: The only issues that get to the Supreme Court are political ones.

Not true, unless you define politics so expansively that it covers everything.

gotta go with Capt Dan on this one, plenty of SC cases are just the intersection of old (or poorly drafted) law and weird problems that need clarification

Yes, fair enough. I didn't express what I meant well. I mean, presumably, Posner wouldn't mind justicing those cases if he were on the SC. My point was that when political cases get to the SC, they get their for a reason, and its not a failure of judicial-ness. That's all I meant.


Amen to that.  also i like the word judicial-ness, we need to come up with a definition
 
2013-11-15 01:26:28 PM  
cdn.meme.li
 
2013-11-15 01:31:27 PM  

cptjeff: Captain Dan: DamnYankees: The only issues that get to the Supreme Court are political ones.

Not true, unless you define politics so expansively that it covers everything.

Politics does cover everything- Politics is how we structure society, at every level. Put two people together in a room and you have politics.

Also, have any examples you'd like to cite, or are you just one of the people who doesn't realize that supposedly technical cases on standing are ideologically driven 9 times out of 10?


Off the top of my head I would think that the cases deciding patent law issues are pretty apolitical in any traditional sense, so over the last year you have Mayo and Myriad.
 
2013-11-15 01:33:25 PM  
He's way better off doing his thing in the lower courts. Where it really pisses off hardcore right-wingers.
 
2013-11-15 01:35:05 PM  

cptjeff: Captain Dan: DamnYankees: The only issues that get to the Supreme Court are political ones.

Not true, unless you define politics so expansively that it covers everything.

Politics does cover everything- Politics is how we structure society, at every level. Put two people together in a room and you have politics.

Also, have any examples you'd like to cite, or are you just one of the people who doesn't realize that supposedly technical cases on standing are ideologically driven 9 times out of 10?


Captain fight!
 
2013-11-15 01:35:25 PM  

Robin Hoodie: not trying to fight either, but in the hands of jurists and politicians L&E justifies both sides (and everything in between) of virtually everything. efficiency is a fun goal, but the question quickly becomes one of who is doing the measuring


Ah, fair point I suppose, although I think that argument can be used against all jurisprudential philosophies.

If your argument is that the surety that tends to go along with many L&E opinions masks its flaws, and sometimes leads to pronouncements akin to those made during the dark and stupid days of "natural law" then I am 100% in agreement.  As a Holmsian legal realist, I do however like L&E as an analytical tool (i.e. looking to least cost avoidance or actually figuring out what transactions are Coase Theorem appropriate).
 
2013-11-15 01:40:12 PM  

Robin Hoodie: Off the top of my head I would think that the cases deciding patent law issues are pretty apolitical in any traditional sense, so over the last year you have Mayo and Myriad.


Yes, but Patent is a weird deal, in that the "political"* body there is the Federal Circuit, not the Supreme Court.  So the supreme court actually ends up working more like a dispassionate adult arbiter whose few patent opinions basically involve them dragging the Fed.Cir. kicking and screaming behind the woodshed so they can be taught a lesson.  I see this is a trend that started with the formation of the Fed.Cir. and which really started going around KSR.

/* political meaning more "likely to be captured by special interests"
 
2013-11-15 01:42:44 PM  

Teiritzamna: Robin Hoodie: not trying to fight either, but in the hands of jurists and politicians L&E justifies both sides (and everything in between) of virtually everything. efficiency is a fun goal, but the question quickly becomes one of who is doing the measuring

Ah, fair point I suppose, although I think that argument can be used against all jurisprudential philosophies.

If your argument is that the surety that tends to go along with many L&E opinions masks its flaws, and sometimes leads to pronouncements akin to those made during the dark and stupid days of "natural law" then I am 100% in agreement.  As a Holmsian legal realist, I do however like L&E as an analytical tool (i.e. looking to least cost avoidance or actually figuring out what transactions are Coase Theorem appropriate).



This is a court of law, Teiritzmamna, not a court of justice! you make a good point, now if we could just get some economist in the courts to use L&E as an analytical tool
 
2013-11-15 01:47:37 PM  

cptjeff: Politics does cover everything- Politics is how we structure society, at every level. Put two people together in a room and you have politics.


Interesting definition.  Eating beans to influence my farts - politics!   Falling asleep in a PoliSci class - politics!

Also, have any examples you'd like to cite, or are you just one of the people who doesn't realize that supposedly technical cases on standing are ideologically driven 9 times out of 10?

http://www.scotusblog.com/2012/02/opinion-analysis-court-rebukes-wes t- virginia-court-over-arbitration-stance/

This is as straightforward as it gets.  The SC overturned the West Virginia Supreme Court, which had argued that Supreme Court precedent got it wrong and therefore they weren't going to follow it.
 
2013-11-15 01:49:55 PM  
Reminds me of why Lord Denning moved down from the House of Lords and back to the Appeals Court: not enough decisions, and too many other people who needed to be convinced of your opinion.
 
2013-11-15 01:54:03 PM  
Well, I don't like the Supreme Court," Posner says. "I don't think it's a real court. I think of it as basically ... it's like a House of Lords. It's a quasi-political body. President, Senate, House of Representatives, Supreme Court. It's very political. And they decide which cases to hear, which doesn't strike me as something judges should do. You should take what comes. When you decide which case to hear it means you've decided the cases ahead of time.

Well, that's the most enlightening thing I've read from a judge in a long, long time.
 
2013-11-15 01:56:38 PM  

BullBearMS: Well, that's the most enlightening thing I've read from a judge in a long, long time.


Not sure how its enlightening. If the judges haven't pretty much decided a case before they agree to hear it, they aren't doing their jobs.
 
2013-11-15 01:59:02 PM  

Robin Hoodie: Off the top of my head I would think that the cases deciding patent law issues are pretty apolitical in any traditional sense, so over the last year you have Mayo and Myriad.


They're not partisan issues, but they are political. I think you may be conflating the terms, which, given the current environment, would be perfectly natural. But Appeals Courts are trying to decide whether a lower court judge erred in issuing a ruling in a 3 month long trial of a technical tax case, and whether or not that ruling was enough to demand a retrial, while the Supreme Court is deciding if it's appropriate to allow a business method patent on a new method of breeding monkeys, or if that should fall under the prohibition on patenting living things. That's a decision about the nature of government protection for innovation and the boundaries of what we as a society allow. The tax case appeal is about finding new cures for insomnia.
 
2013-11-15 02:02:59 PM  
SCUS typically only takes cases when there is a split between the District Courts regarding a particular issue.    They are not as concerned about any single case, they leave that to the District Courts and get involved when one will get different results depending on which District one is in.
 
2013-11-15 02:10:48 PM  

Captain Dan: Also, have any examples you'd like to cite, or are you just one of the people who doesn't realize that supposedly technical cases on standing are ideologically driven 9 times out of 10?

http://www.scotusblog.com/2012/02/opinion-analysis-court-rebukes-wes t- virginia-court-over-arbitration-stance/

This is as straightforward as it gets.  The SC overturned the West Virginia Supreme Court, which had argued that Supreme Court precedent got it wrong and therefore they weren't going to follow it.


I wouldn't even call that a case. It's a summary reversal to smack down an insolent court, following up to a previous case, which was a political question. Certainly, cases like that only make up a tiny percentage of the court's workload.

Captain Dan: cptjeff: Politics does cover everything- Politics is how we structure society, at every level. Put two people together in a room and you have politics.

Interesting definition.  Eating beans to influence my farts - politics!   Falling asleep in a PoliSci class - politics!



Do either of those things have to do with influencing the structure of society? No? Then you're just being a moron.
 
2013-11-15 02:12:40 PM  

ROBO-Jesus: Reminds me of why Lord Denning moved down from the House of Lords and back to the Appeals Court: not enough decisions, and too many other people who needed to be convinced of your opinion.


Yay another Denning fan!  Always glad to see him referenced more than once in a thread (and not just by me).
 
2013-11-15 02:12:58 PM  

DamnYankees: BullBearMS: Well, that's the most enlightening thing I've read from a judge in a long, long time.

Not sure how its enlightening. If the judges haven't pretty much decided a case before they agree to hear it, they aren't doing their jobs.


So why even bother with having council argue the case?
 
2013-11-15 02:14:17 PM  

BullBearMS: DamnYankees: BullBearMS: Well, that's the most enlightening thing I've read from a judge in a long, long time.

Not sure how its enlightening. If the judges haven't pretty much decided a case before they agree to hear it, they aren't doing their jobs.

So why even bother with having council argue the case?


I agree. They shouldn't bother.
 
2013-11-15 02:16:15 PM  

cptjeff: Robin Hoodie: Off the top of my head I would think that the cases deciding patent law issues are pretty apolitical in any traditional sense, so over the last year you have Mayo and Myriad.

They're not partisan issues, but they are political. I think you may be conflating the terms, which, given the current environment, would be perfectly natural. But Appeals Courts are trying to decide whether a lower court judge erred in issuing a ruling in a 3 month long trial of a technical tax case, and whether or not that ruling was enough to demand a retrial, while the Supreme Court is deciding if it's appropriate to allow a business method patent on a new method of breeding monkeys, or if that should fall under the prohibition on patenting living things. That's a decision about the nature of government protection for innovation and the boundaries of what we as a society allow. The tax case appeal is about finding new cures for insomnia.


I guess if we want to be hyper-literal about it then yes, all SCOTUS decisions are necessarily political because they have something to do with government. No conflating here, just trying to use the term "political" in the same sense in which it was brought up. On a similar note, of course all cases in front of the supreme court are partisan issues, otherwise there wouldn't be an appellant and a respondent

/overly literal people figuratively kill me
 
2013-11-15 02:28:52 PM  
 Teiritzamna: ROBO-Jesus: Reminds me of why Lord Denning moved down from the House of Lords and back to the Appeals Court: not enough decisions, and too many other people who needed to be convinced of your opinion.

Yay another Denning fan!  Always glad to see him referenced more than once in a thread (and not just by me).


Well now I'm embarrassed because I see you basically said what I said first. Next time use red ink (with maybe a red hand pointing to it)!

As compensation: http://www.youtube.com/watch?v=nouSvXESNLc
 
2013-11-15 02:29:25 PM  

DamnYankees: BullBearMS: DamnYankees: BullBearMS: Well, that's the most enlightening thing I've read from a judge in a long, long time.

Not sure how its enlightening. If the judges haven't pretty much decided a case before they agree to hear it, they aren't doing their jobs.

So why even bother with having council argue the case?

I agree. They shouldn't bother.


I was going to say....I remember you being very much against oral arguments at the USSC level because they rarely, if ever, change a Justice's mind.
 
2013-11-15 02:35:28 PM  

Robin Hoodie: of course all cases in front of the supreme court are partisan issues, otherwise there wouldn't be an appellant and a respondent


Partisan as in partisan politics. As in, what talking heads on TV are shouting about at any given time.

Robin Hoodie: all SCOTUS decisions are necessarily political because they have something to do with government.


Politics != Government. Government and formal legal structures are only subsets of politics, which covers the structuring of societies as a whole.

Regardless, Posner's point is that SCOTUS makes decisions defining the scope of government power. Appeals courts sometimes do that, but they're more often in the business of administering rules rather than reshaping rules. The Supreme Court is in the business of reshaping rules. Sometimes tiny little tweaks, sometimes major overhauls. Changing those rules is a political exercise- it's about changing the structures our society operates under, sometimes in infinitesimally small ways, but still changing them. Administering those rules is a different thing altogether.
 
2013-11-15 02:51:19 PM  

The_Six_Fingered_Man: DamnYankees: BullBearMS: DamnYankees: BullBearMS: Well, that's the most enlightening thing I've read from a judge in a long, long time.

Not sure how its enlightening. If the judges haven't pretty much decided a case before they agree to hear it, they aren't doing their jobs.

So why even bother with having council argue the case?

I agree. They shouldn't bother.

I was going to say....I remember you being very much against oral arguments at the USSC level because they rarely, if ever, change a Justice's mind.


Most justices disagree with that, by the way. They're often unsure on a case going into argument, because both sides might have convincing and legitimate arguments, and they'll use the time to play around with the ideas on each side a bit. Justices come into most cases already decided, but I've heard interviews with various justices where they peg the cases where they change their position, or at least their reasoning, at 20-30% of cases.

Of course, Thomas doesn't feel that way, which is why he more or less naps during them. He doesn't find the interplay valuable, his view is that there's nothing he can get from the arguments that he can't get from the zillion amicus briefs on his desk. And all the Justices will tell you that they do read them all. They'll start skimming after a while if it's the same damn thing for the 20th time, but if you were to randomly submit a brief to the court on any given case, it would get read, and not just by law clerks.
 
2013-11-15 07:17:02 PM  
"...one reason is his cat, Pixie."

Aaaaaaalrighty then.
 
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