Richard Posner, Unedited (Part One)

Unlike Matthew Stiegler of the CA3 Blog (and possibly the Volokh Conspiracy’s Jonathan Adler), I do not think that Richard Posner’s new book is “batshit crazy.” It is eccentric, obsessive, overblown, and incredibly verbose.  The title alone runs to twenty words: Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments.  The title is also misleading, as the book itself says very little about reforming the federal judiciary, apart from the two issues flagged in the subtitle.  Of its almost 300 pages, only about eighteen discuss televising oral arguments, and the rest are devoted, in one way or another, to the dispute about staff attorneys that led to Posner’s sudden resignation from his court. He briefly discusses a few other issues intermittently, but no one should read this book expecting to learn about necessary reforms in the federal judiciary.

Then again, no one could possibly pick up this book hoping to learn about necessary reforms in the federal judiciary, and few will actually be very interested in either the staff attorney program at the Seventh Circuit or the prospects for televising oral arguments. No, the great motivator will be the desire to learn the particulars of Posner’s disagreement with Chief Judge Diane Wood, and how that led him to retire with only two days’ notice.  On that score, readers will not be disappointed.  Posner does not spare many details in his nearly day-by-day account of the events, including the date and length of the four-hour pre-dawn reverie that led to his realization about the poor treatment of pro se litigants in his court. (pp. 139-41.)

Posner came to the conclusion that, “uniquely among this court’s judges,” he had come to “a deeply felt commitment to the welfare of the pro se litigants,” whose cases were almost invariably resolved based on recommendations from the staff attorneys. Those recommendations, however, were seldom well written, and the resulting judicial orders were consequently inadequate – they did not fully explain the reasons for the rulings, nor did they advise the losing pro se parties of other possible avenues for relief.  The first step in the solution, Posner believed, was to improve the quality of the staff attorney memorandums, and thus he proposed to review every single memo himself, making suggested corrections and clarifications, before they were forwarded to the judges who would decide the case. “I believe I am the only judge of my court who combines extensive appellate experience,” he said, “with extensive writing experience (my countless books and articles and blog posts and speeches).” (p. 241.)  

Posner assumed that his proposal would be uncontroversial within the court, but, as everyone now knows, it was roundly rejected by Chief Judge Wood and the other judges.  This led to an increasingly antagonistic exchange of emails between Posner and Wood, many of which are reproduced in the book, often with Posner’s parenthetical comments about Wood’s reasoning and word choices. Thwarted by the court, Posner thus decided to write a book about the staff attorney issues, in which he would include samples of their work together with his corrections and improvements.

The crucial event appears to have been Wood’s decision to obtain an advisory opinion from the Judicial Conference Committee on Codes of Conduct.  In response to Wood’s request, the Committee opined that “internal materials” such as bench memoranda, emails between judges, and draft orders from staff attorneys could not be disclosed either before or after a case is resolved.  Wood therefore informed Posner, and the court’s other judges, that any release of Posner’s book – of which she had seen a partial draft – “would constitute a serious breach of ethics – one that would do great damage to the court as an institution.”

Posner disagreed with the Committee and Judge Wood, but he chose the simplest way to avoid the ethics issue.  He resigned from the court before publishing the book.  There is “a curious wrinkle, which should scotch all future criticisms of my disclosing . . . information that a critic might think” of as an ethics violation.  “The wrinkle is this:  the [ethics committee] opinion concerns only extrajudicial writing by judges; I am not a judge . . . . I can write anything I please.” (pp. 251-64, emphasis original.)

After 36 years on the Seventh Circuit, Richard Posner chose to resign (albeit, at full pay) rather than refrain from publishing his book.  Was that “batshit crazy,” or even “bat--- crazy,” as Jonathan Adler put it (probably due to restrictions imposed by the Washington Post, whose website hosts the Volokh blog)?

I don’t think so.  First, it is obvious that Posner had had enough of judging.  He had already more or less announced that he expected to resign by age 80, so his decision came only a little more than a year early.

More significantly, Reforming the Federal Judiciary includes an important message about the treatment of pro se litigants who, as Posner repeatedly emphasizes, are overwhelmingly low-income and most often imprisoned.  It is true that Posner served for over thirty years without paying much attention to prisoner or other pro se cases, and he has no good explanation for his epiphany, but that would be all the more reason for him to make the point with the grandest flourish possible. 

Alas, the book itself is unlikely to have the impact Posner imagined. It is too long, too repetitive, too involuted, and too egocentric, as I will explain in another post.

Reforming the Federal Judiciary may be futile, self-defeating, or even Pyrrhic – but it is not crazy.

Comments

[Enrique Guerra-Pujol]

I too think Posner is onto something. Perhaps the right to counsel established in Gideon should be extended to all civil litigants and habeas petitioners, not just criminal defendants.

[Deep State Special Legal Counsel]

We need to re-examine Gideon and progeny. The right to counsel does not mean the government should pay for it.

During the 60s-90a it was darn near impossible to find a criminal lawyer to take work at low rates. Any lawyer back then, even a mediocre one could make a good buck just by hanging a shingle. There was no incentive to take on poor clients.

Today, with the grotesque oversaturation of the attorney market, many attorneys, including me, can be had for cheap. I find myself competing with the Public Defender...I can't compete with FREE.

I get a call when the PD's client doesn't like the State's plea offer. All of a sudden, they aren't indigent. Many folks lie on their affidavits of assets and liabilities to obtain a FREE lawyer.

Imagine how Wal-Mart would react if the County or State of Illinois opened up a shopping center that gave away groceries and tires. The Public Defender interferes with the free market.

[Enrique Armijo]

I thought the book was well worth reading - if for no other reason that it provided a window to a part of appellate law and practice that has long taken place in the metaphorical basement of the courthouse. And even if it is only a window into one court's basement, there's still something to be learned.

One thing did bother me throughout though, which you might plan to take on in your next post. It seemed to me that many of Posner's complaints concerning the staff attorney work product in his court are not strictly about what he claims to be his motivating concern for those complaints. In particular, Posner claims the staff attorney mistakes were making the reasoning behind court decisions less understandable to the pro se litigants who were affected. I wasn't persuaded that was always true.

By Posner's own admission, many of the staff attorney errors were "stylistic" or "verbal/grammatical infelicities" - for example, using adverbial surplusage like "presumably" or "essentially" where it wasn't necessary, or using "amends" rather than "has now amended," or the like, or the use of terms like "actual innocence" or "direct appeal" when there's no other kind of innocence or appeal. But do appellate judges and pro se litigants bring the same set of priors with respect to reading comprehension? Of course not. It is generally true that larded-up writing is harder to understand (Exhibit A may be this blog comment). But I didn't see how some of the infelicities that Posner sought to remedy by editing them out of 7th Circuit staff attorney memoranda had much bearing on how and whether pro se litigants understand the law that courts apply to their claims.

On the understandability point, I thought he was on firmer ground when advocating for the use of reading level indexes for orders and memoranda in pro se cases. And the book is at its most persuasive when he discusses the negative externalities associated with the overuse of unpublished appellate opinions. There is no doubt that limiting unpublished opinions would result in better work product from the appellate courts, and he is exactly right to be pointing that out. Maybe that's a federal judiciary-wide reform that will receive more traction as a result of his book.

[Matt]

The situation of pro se litigants is important. As someone who works on immigration law, it's something I've had ample time to think about. But when I read something like this,

"Posner came to the conclusion that, “uniquely among this court’s judges,” he had come to “a deeply felt commitment to the welfare of the pro se litigants,”"

All I want to say is, "Oh, barf. Please, do at least a little bit to get over yourself."

[Deep State Special Legal Counsel]

Matt,

"Barf" is right on. Judges, lawyers, clerks, Sheriffs (bailiffs), Probation, Social Services and on down to the court house janitor despise and hate. Pro Se litigants. They are unpredictable, talk to much (like Donald Trump) are unrealistic, mentally unstable in many cases, too cheap to hire a lawyer, want FREE legal advice or are adherents of the Sovereign Citizen movement. Pro Se Litigants are down right scary. I have observed courtroom deputies "close ranks" when a Pro Se litigant steps up to the bench.

There is no one iota of sympathy for Pro Se Litigants.

[Robert Patterson]

But what about his law clerks? Had he already hired law clerks for September 2017 and September 2018? If he had not, then that meant he was planning his retirement for some time. If he had hired clerks, then they are presumably adrift... Inquiring minds want to know.

[Daniel]

I have handled a few administrative hearings for other people, and a small number of pro se cases in court. I don't know if Judge Posner is right in his former court, but my experience is that most judges are biased against the self-represented, especially when the opponent has a lawyer.

Other court staff can be prejudiced too. In a juvenile case I filed with the court clerk a "parental motion for discovery." I forgot to two-hole punch the motion, and she said, "I can't let you file this without the holes." I said, "There is your two-hole punch, can I just use it?" She let me file the papers, but the worse part is that I saw another attorney just before me just grab the two-hold punch, use it, and hand his papers to the clerk without a complaint.

[Mr. Grumpy]

Posner comes across as mentally unstable in this latest screed, and it's good that he decided to retire. I seriously doubt that the staff attorneys office in the 7th Circuit does anything except give every case the attention it deserves. If Posner had all these concerns, where were his dissents from these "rubber stamp" opinions? I call bullshit.

[Enrique Guerra Pujol]

One of the ironies here is that Posner was willing to spend $100,000 of his own money to buy the necessary equipment to televise his hearings, but wasn't willing to spend a few bucks hire an editor for his latest book.