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October 17, 2005


The Law Fairy

The Easterbrook hygiene rumors are RAMPANT at Chicago (where he teaches a class or two each year -- which people approach with a mixture of insatiable curiosity, whorish attention-seeking and paralyzing fear). Our law school's musical has featured him in various states of uncleanliness (actual line to Easterbrook: "Why is there a bone in your beard?"). Posner baby-selling jokes are also reliable fallbacks.

What's more than just a rumor, though, is Easterbrook's reputation for just plain being an asshole. I'm not talking being harsh to lawyers or clerks. He's outright RUDE to colleagues, e.g., fellow law professors. I have observed this behavior (frankly, as immature as it is intimidating). He's one of the meanest people I've ever tried to avoid a conversation with. Try charming a successful politician like the president with that attitude.


There is a much simpler reason than you are hypothesizing for why Judge Posner has never made the short list:

Elizabeth M. Landes & Richard A. Posner, The Economics of the Baby Shortage, 7 J. LEGAL STUD. 323 (1978).

Imagine him discussing this article in a televised confirmation hearing.


Eastbrook is the most brilliant questioner I have ever heard from the bench. Rumor has it that his ecentricities stem from being confined to a sterile bubble as a small child; after years of limited human contact, he hasn't quite got it right. I'd be interested to hear if others can confirm this. But he really is about the best thinker in the judiciary. If merit mattered, he'd be on the Court. I think he's an A+.


If you're regretting that there's not going to be a liberal nominatee, then it's natural to want them to at least pick a conservative whose opinions will be well-written and (relatively) entertaining to read for the next 20 years, or whatever.

But when you consider how these people are probably going about the nomination process, I think it becomes pretty clear than an Easterbrook isn't what they're looking for. With something as publicized as a Supreme Court nomination, it seems like they'd want someone whose appointment will contribute to the image of the GOP- and thereby to the electibility of GOP candidates for the long-term. So they think about how the person will look to their base, and they think about how the person will look to swing voters who they can maybe get to swing the GOP's way.

With this kind of WH, I don't think the appointments have so much to do with the bench for the bench's sake.


There's something funny about the characterization of SCOTUS justices as "principled hacks" on the one hand with the adoration heaped on them here on the other hand.

Can this be reconciled?

By the way, as a fairly-far-lefty, I would never be called a Nino fan. On the other hand, his dissenting opinion with Stevens in Hamdi (which, as a brand-spankin' new law student, I read in CivPro a few weeks ago) would, I think, be evidence that he is anything but a hack. He is, I think (in my admitted ignorance), too principled to be a hack.


I took a seminar in Legal Interpretation with Judge Easterbrook recently and, though my nose is quite sensitive, didn't notice any foul odors coming from FHE.


I was in law school in Chicago (no, not there) (no, not there either) in the early 90s and there was a federal judicial titan back then known as PosnerEasterbrook. Perhaps this person was in the front of people's minds because this was around the time of the Thomas nomination. My point being that if this PosnerEasterbrook still exists as a mythical two-headed titan of the Seventh Circuit perhapns FHE is too closely associated with Judge Posner to be a cerdible SCOTUS candidate. In two respects.

One is the "splitting votes" theory that most often arises -- as I'm sure Gregg Easterbrook will tell you -- in determining the Most Valuable Player of a sports league. That is, if you have two credible MVP candidates from the same team, the theory is that voters split their votes between the two, to the benefit of now-MVP Option C.

Another is that Judge Posner is probably to intimidatingly scary to ever be nominated himself. Just being tasked with reading everything he's ever written in the vetting process would be daunting! So maybe being conjoined with Judge Posner, who is unlikely to be nominated because of his prolific and, some would say, quirky writings is to FHE's detriment, SCOTUS-wise.



Judge Posner is a lot of things (brilliant, prodigious, recalcitrant), but "principled" is certainly something he is not. Posner routinely flouts precedent when he feels like he can develop a more sensible resolution to the problem before him, and he then masterfully bends precedent to look like it compels (or at least tolerates) the solution he's devised. He is the very definition of an "activist" judge if that term is to have any meaning, even if his decisions are usually correct.

There's an old rumor about why Easterbrook did not clerk for SCOTUS. Justice Brennan recalls that he had many clerks and interviewees throughout his years on the bench that were almost certainly smarter than he was; but none, like Easterbrook, who would ever tell him so to his face. Easterbrook is widely regarded as an arrogant megalomaniac. That may have something to do with his not being a favored SCOUTS candidate.


I've also heard that he smells horrendous. Apparently it is difficult to eat anything when you have a meal with him.

I've seen him in a moot court setting. He was brilliant in his questioning, (and in my view right in his analysis), but he also openly insulted a completely overwhelmed law student.

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