A Judicial Review: Justice Richard Posner

By Marc Seltzer; originally published on May 20, 2009 at politicsunlocked.com

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A potential candidate for the U.S. Supreme Court?

Justice Richard Posner of the U.S. Court of Appeals for the 7th Circuit is a giant in the field of legal theory. In association with others at the University of Chicago Law School, Posner is a chief architect of a movement called “law and economics”: efforts to bring free-market economic thinking into legal theory. Consequently Posner is known as a conservative for his economic principles. However, he does not take broad ideological positions. For example, he supported the government’s recent efforts to stimulate the economy using public funds, but he opposed the use of tax rebates because he concluded that the public would save this money rather than spend it. Instead, he endorsed spending on roads, bridges and other infrastructure, generally in line with Democratic Party positions.

Justice Posner is also a unique Supreme Court candidate because he has expressed so many opinions outside of the courtroom. He has written 40 books and hundreds of articles. He also maintains an active blog with colleague Gary Becker and is considered the most prolific justice in U.S. history. He has expressed support for environmental regulation, abortion rights and other principles that make him appear socially liberal. On the other hand he has supported a powerful government in the context of national security, defending the use of torture and limiting press freedoms in a way that is not popular with critics of the Bush administration.

Can such a person be nominated to the U.S. Supreme Court?

In the past, this would not have been a problem. However, since the 1980s, every Supreme Court nomination has become a power struggle and performance where the political parties attack the other side and try to score points while painting the opposition as extreme. The nomination of Posner would be difficult because it would appeal to centrists from both parties, but it would also be a sitting duck for attack by ideologues from both parties.

The question for President Obama is whether he believes Posner would make a great justice. Obama knows Posner from their time together on the faculty at the University of Chicago Law School. They share a pragmatic view of politics and policy. Is the President willing to apply his political capital in support of a candidate who will draw fire from his own party? Is Obama comfortable appointing a justice with such an independent mind that his judicial decisionmaking is difficult to predict?