Posner’s new book is bananas, but you might want it anyway

No doubt you’ve heard that legendary Seventh Circuit Judge Richard Posner abruptly retired earlier this month. Likely you’ve also heard that he just released a sensational new book recounting the conflict over his court’s handling of pro se appeals that he says led to his retirement. Posner is famously irreverent, and I suspect many look forward to watching the fists fly.

I got a copy of Posner’s book over the weekend, and I’ve read most of it and skimmed the rest. It’s called Reforming the Federal Judiciary, and subtitled My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments. He self-published it through Amazon, you can buy it here for the low-low price of $11.99.

Let’s start with the positive:

  • There’s a kernel of bracing Posnerian brilliance here. Blazing a spotlight on the separate-but-equal appellate review that pro litigants receive is vitally important. Hardly anyone understands how pro se appeals are handled by the federal courts — that is, how differently than appeals by litigants wealthy enough to hire lawyers. And hardly anyone cares. Posner is on to something big here.
  • There’s a decent amount of raw information here about what staff attorneys’ offices do in different circuits. For the Third Circuit, there’s 20 pages of survey answers by current staff attorneys detailing who they are and what they do. There’s some useful information there for appellate practitioners. There also is detailed information on the Fifth and Seventh Circuit SAOs, and a spreadsheet with data on most of the others.
  • Third Circuit fans will note with satisfaction that our staff attorneys’ office is held up by Posner as one of the offices that’s doing it right, or at least better.

So much for the happy part. Posner has made a terrible mistake in publishing this book. It is batshit crazy.

At its heart, this book is a baffling, disjointed blow-by-blow of Posner’s many recent battles with Seventh Circuit Chief Judge Diane Wood, the quite-unintentional hero of the tale.

The primary battle arose from Posner’s demand that he be allowed to re-write all his circuit’s staff attorneys’ memos and draft opinions before they went to his fellow judges. This is a ludicrous idea. Posner thought it “uncontroversial” and he was “surprised” when it was met with first silence, then uniform rejection. When Wood told him so, Posner “angrily” threatened to reveal staff counsel work product he deemed not good enough. When he was told that doing so would violate the judicial code of conduct, he resigned, and now he has self-published everything — memos and drafts by staff counsel peppered with his acid edits, emails between the judges, the whole trainwreck.

And why did Posner anoint himself as filter between the staff attorneys and his colleagues? Largely, he says, because “uniquely among this court’s judges, [he had] a deeply felt commitment to the welfare of the pro se litigants.” But, by his own account, he only “became interested in the staff attorney program in the late winter/early spring of this year (2017).” And in his preceding three and a half decades on the court, “I’m pretty sure I’d never even discussed it with another judge.” Deeply? Uniquely?

It gets worse. Posner chooses to reveal the initial panel vote in a still-not-yet-decided appeal that he identifies by name. The other two panel members plan to affirm, he tells us. (Posner disagrees, so we get two paragraphs summarizing and quoting from the dissent he would have filed.) What compelling reason led him to include this stunning disclosure in a book ostensibly about pro se’s and televising arguments, when this case has nothing to do with either? Because “I’ve decided to note two recent clashes with colleagues.” This is not Posner-being-Posner, this is madness.

The other “clash” he chooses to recount is when he emailed all the judges on the court to tell them he thought it odd that some judges referred to Wood as “Chief Diane.” He admits this one “doesn’t reflect credit on me” and, “In retrospect, I cannot understand what moved me to email the judges ….” Me neither.

While bad judgment is the real issue and there are dozens more examples available, there also are embarrassing errors. An appendix with another judge’s writing tips (?) repeats itself at length. The index lists Third Circuit Chief Judge D. Brooks Smith, but actually the judge referred to all but once is EDVa Chief District Judge Rebecca Smith. One passage starts out as narrative text but ends up as a quoted email. It all reinforces the sense that this book was a lonely endeavor.

Posner’s enemies will be chortling, but, for his many admirers, it’s just sad.



UPDATE: here is a powerful response to Posner’s book, written by a former Seventh Circuit staff attorney (and current DOJ antitrust lawyer) and posted on October 5 on Volokh Conspiracy.