Posted September 6, 2017 2:22 PM
   

Posner says friction on 7th Circuit bench led to his retirement

Richard A. Posner
Richard A. Posner
By Patricia Manson
Law Bulletin staff writer

Richard A. Posner says clashes with his fellow judges over the way the 7th U.S. Circuit Court of Appeals treats litigants who represent themselves led him to retire from the bench earlier than he planned.

He had intended to stay on the Chicago-based 7th Circuit until he turned 80, the 78-year-old Posner wrote in an e-mail on Tuesday in response to a Daily Law Bulletin interview request. He believes 80 “should be the upper limit for all federal judges, including Supreme Court [j]ustices.”

But “difficulty” with his colleagues, he wrote in the e-mail, moved up that date.

“I was not getting along with the other judges because I was (and am) very concerned about how the court treats pro se litigants, who I believe deserve a better shake,” Posner wrote.

About 55 percent to 60 percent of the litigants who file appeals with the 7th Circuit represent themselves without lawyers. Very few pro se litigants are provided the opportunity to argue their cases in court. The 7th Circuit rules on most of those cases based on the briefs.

Posner wrote that he has a book coming out soon that explains his views on the topic — as well as the views of his former colleagues — “in considerable detail.”

Posner stepped down from the bench on Saturday, a decision that was announced Friday afternoon.

In a statement Friday, Posner said he will continue to teach and write, “with a particular focus on social justice reform.”

Posner’s retirement leaves four of the 7th Circuit’s 11 seats vacant. Terence T. Evans took senior status in January 2010 and died the following year. John Daniel Tinder took senior status in February 2015 and retired from the bench eight months later. Ann Claire Williams took senior status in June and intends to retire by the end of the year.

In his e-mail, Posner conceded his departure from the 7th Circuit “will greatly increase the burden on the existing judges.”

That is particularly true “as a number of the existing judges are old (one is about to turn 91!),” Posner wrote.

He was referring to Judge William J. Bauer, whose birthday is Sept. 15.

Posner, one of the best known appellate judges in the nation and likely the most cited one, served on the 7th Circuit for nearly 36 years.

He was widely considered a conservative when he was appointed by President Ronald Reagan in 1981. Posner, who had been teaching at the University of Chicago Law School for 12 years at the time, was a leading proponent of the law-and-economics school of thought.

But his prolific writings — he wrote more than 3,300 judicial opinions and is the author of numerous books and articles — have made his ideology hard to pin down.

Posner has called for fewer restrictions on domestic surveillance and he wrote the majority opinion striking down Illinois’ ban on carrying weapons in public.

But he also supports the legalization of marijuana and wrote opinions in favor of abortion rights and same-sex marriage.

Posner told National Public Radio in 2012 he had become less conservative “since the Republican Party started becoming goofy.”

And in a 2014 interview with the Daily Law Bulletin, Posner cited a 2010 study conducted by Corey Rayburn Yung as evidence that he was a moderate.

Yung, now a professor at the University of Kansas School of Law, arrayed judges on each federal circuit from the most conservative to the most liberal.

Posner was in the middle of the pack in the 7th Circuit.

In his retirement statement Friday, Posner said he took “a pragmatic approach to judging.”

He believes judicial opinions should be easy to understand, Posner said in the statement, and that judges “should focus on the right and wrong in every case.”

On the bench, Posner often grilled lawyers and sometimes impatiently dismissed their arguments.

His performance reflected his description of himself in a 2001 article in The New Yorker.

Posner told his interviewer that he and his cat, Dinah, were both “playful, with a streak of cruelty.”

In Tuesday’s e-mail, Posner wrote he thinks his greatest impact — in both his academic writings and his judicial opinions — has been on the economic analysis of the law.

Posner also wrote that his decision to retire now has nothing to do with the fact that President Donald Trump likely will appoint his successor.

“I don’t think it’s proper for judges or [j]ustices to make their decision to retire depend on whom they think the [p]resident will appoint as replacements,” he wrote.

Candidates must be nominated by the president and confirmed by the U.S. Senate before they take the bench.

In a long-running practice, six of the 7th Circuit’s seats are filled by candidates from Illinois, three from Indiana and two from Wisconsin. Posner and Williams filled two of the Illinois seats.

Traditionally, a state’s top-ranking member of Congress from the president’s party takes charge of the process of evaluating and recommending applicants for federal judgeships. But Illinois’ senators have long taken a bipartisan approach to the task.

The state’s current senators, Richard J. Durbin and Tammy Duckworth, are Democrats.

Duckworth said she hopes Trump, a Republican, will reach across the political divide in the search for Posner’s replacement.

“Senator Durbin and I hope to work closely with the nonpartisan screening committees we have established and with the White House to ensure that this critical vacancy is filled through a collaborative and bipartisan process,” Duckworth said in a statement Tuesday.

In his e-mail, Posner wrote leaving the bench opens the way for him to assist Pixie, a Maine Coon cat who succeeded the late Dinah.

Pixie intends to run for president in 2020, Posner wrote in the e-mail.

As a judge, he clarified, he could not manage or otherwise participate in Pixie’s bid last year for the highest office in the land. Pixie lost to real estate mogul Trump, despite writers at the Above The Law blog endorsing the cat.

Posner plans to take a leading role in Pixie’s 2020 campaign.

“I am optimistic that by then the public will be fed up with human presidential candidates, whether named Trump or Clinton,” he wrote.

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