The I’ll Be Dreaming About Donkeys Edition – an Interview with Judge Richard Posner (Ret.)

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Transcript

@theBar

The I’ll Be Dreaming About Donkeys Edition – an Interview with Judge Richard Posner (Ret.)

03/07/2018

[Music]

Jon Amarilio: Hello everyone, and welcome to CBA’s @theBar podcast, where young and youngish lawyers discuss legal news, events, topics, stories, and whatever else strikes their fancy. I’m your host, Jon Amarilio of Taft Stettinius & Hollister, and co-hosting the pod with me today is Carl Newman of the City of Chicago Corporation Counsel’s Office for at least a few more weeks anyway.

Hello Carl.

Carl Newman: Hi Jon.

Jon Amarilio: So Carl, we have a big interview ahead of us today. We are joined by retired judge of the US Court of Appeals for the Seventh Circuit, Richard Posner. Before he retired last September Judge Posner was arguably the best-known appellate judge in the country, often referred to as the Tenth Justice of the Supreme Court. His voluminous body of work essentially defined a judicial philosophy, often referred to his judicial realism, at least by its supporters.

In fact, according to the Journal of Legal Studies, Judge Posner is the most cited legal scholar of the 20th Century, writing more than 3,300 judicial opinions, and I just learned, 66 books. He is currently a senior lecturer at the University of Chicago and has begun his own law firm as well.

Judge Posner is known for his often brilliant and just as often controversial statements and opinions, recently stating that the US Supreme Court is mediocre and highly politicized, and previously describing the same court as awful and at its nadir.

Comments like that have made him beloved by many and not so beloved by others, but no matter which side of that divide you may stand on, hearing from Judge Posner is always an interesting and educational experience.

Judge, welcome @theBar.

Richard Allen Posner: Thank you. Thank you very much.

Jon Amarilio: So, we have more topics that we’d like to cover today than we have time to do so, but we thought we’d lead today off by speaking to you about your views on pro se litigants. For our audience, those are non-lawyers who represent themselves in legal disputes and how they are treated in our legal system.

You’ve been very outspoken on this subject off late especially since your retirement, and my first question to you is pretty straightforward. Why?

Richard Allen Posner: Well, eventually, I mean, I was on the court for 35 and two-thirds years, and eventually toward the end of that period I realized we weren’t — we weren’t treating the pro ses properly.

Now about half of the appellants to the Seventh Circuit Court of Appeals are pro se, and of the pro ses about half are prison inmates. A pro se is — it’s a Latin expression means for yourself. So a pro se is just someone who doesn’t have a lawyer and as a result is litigating for himself.

So, they are handicapped because most of these people have no legal training, legal insights. If they were successful people they would have lawyers. If they will have a lawyer, they can’t afford a lawyer. They are sort of much lower down on the social scale, and that’s a big handicap for them. But I realized eventually we just weren’t treating them properly, asking too much of them.

Jon Amarilio: By that you mean holding them to the same standards you hold lawyers to?

Richard Allen Posner: Yes. My sense was that most of the judges, they thought that a Federal Court should not have these people, who aren’t — don’t have lawyers, often not educated, often they are in prison, they shouldn’t be in a Federal Court, and somehow undermine the dignity. Federal Court should be for big criminals and wealthy people with brilliant lawyers.

Carl Newman: Or at least lawyers?

Richard Allen Posner: Or at least lawyers. So, that’s when — so I made a number of suggestions for how we could treat pro ses and they were all turned down.

Jon Amarilio: What were some of those suggestions?

Richard Allen Posner: Well, one is the — the way it works when the pro se appeals to the Court of Appeals he very rarely are they — are they women, he’ll have appeal papers of some sort, and will submit those, and those papers are then given to what are called staff attorneys who are like law clerks but they’re not hired by individual judges, they’re hired by the court as a whole by a person who runs the staff attorney program.

So, they’re given the papers and they’re told to write a summary of recommendation or it could be a draft order, how they think the case should be decided? The recommendation order goes through a three-judge panel which then decides what to do.

(00:04:57)

So, the problem is that, well, about a half of the staff attorneys write well, and the other half don’t write well, which means that half the time the judges are getting documents suggesting how they should rule but not clearly written. They could always call up the staff attorney and ask what do you mean, can you be clear about this? But they don’t bother, because they want to — they don’t want to spend time on pro ses. So that’s one mistake.

Another, which is a little subtler is that all of this pro ses appear to have heard of the term habeas corpus.

Jon Amarilio: Yeah.

Richard Allen Posner: And it’s very, very difficult to get Federal habeas corpus. And so the pro ses who asked for habeas corpus, were numerous, are always turned down.

What I said, what I suggested without success was that the staff attorney, who issues the habeas corpus should look very carefully at the papers filed by the pro se to see whether the pro se may actually have a good case but he shouldn’t be asking for habeas corpus.

And in the case like that, a staff attorney should tell the judges, tell the pro se that he may have a good case, but he made a mistake in labeling it habeas corpus, and then you’d want to go on and explain why you think it might be a good case. What could he have asked for that a court might grant him?

Jon Amarilio: And you would put that in order, like an advisory opinion?

Richard Allen Posner: Yeah. Exactly, yeah.

Jon Amarilio: And so, essentially give them another shot?

Richard Allen Posner: Right. And the other thing is that — I think I said about half the recommendation orders or draft — recommendation memos or draft orders of the staff attorneys are well written. The other half are not well written. And I suggested that I review all the staff attorney recommendation memos or draft orders before they went to the judges, and I’d make sure they were competently drafted. So that always turned down.

Jon Amarilio: And you met with quite a bit of pushback from what I’ve heard on that, right?

Richard Allen Posner: Oh yeah. Yeah.

Jon Amarilio: Well, in fairness to the other side that would essentially put you in-charge of half the court’s docket, right, one judge?

Richard Allen Posner: Yes, that’s right. On the other hand I was the only judge who is interested in the pro se, so —

Carl Newman: All right, I want to go back for a second Judge, because it seems to me like your concerns — I want to sort of understand what the concern is, is the concern the treatment that they receive as opposed to the results that they are getting? And what I mean is, the Illinois Supreme Court, for a while now, has been on this kick based on a report about how people perceive the legal system, and one of the things that they learned in it is that literally if a Judge just spends more time talking to a person in court they are more likely to obey a court order they don’t like. And so like that’s a truly treatment based question.

The other side is, results, and so the question is, are pro se litigants losing cases they ought to be winning, because I will say, as a person who was interviewed for your book, because I was a staff clerk in a different circuit, I took the pro se appeals that I worked on very, very seriously. I spent a lot of time trying to figure out how they could possibly have a claim, but the truth is that a lot of their cases are meritless, there’s no law for it. And so, I guess my question is, is the problem that the pro se litigants aren’t being treated well and it’s resulting in the wrong outcome, or that they are being treated very well and they ought to just be treated better because the court system ought to treat them better?

Richard Allen Posner: Well, I’d answer it a little differently. Most of the pro se appeals should lose, should fail. I don’t know what percentage but a significant percentage should fail. A majority should fail, but that leaves a substantial number that are potentially meritorious. They need to have some help, say from the staff attorneys who will explain their case in a way that the judges understand. Judges aren’t actually to read the pro se materials.

And if the recommendations that the judges get are realistic and reasonable and articulate and so on, then the judges in my court, I think in most court, they will still turn down most of the appeals from the pro ses, but a few will get through.

The most serious problem is simply that the judges don’t really think the pro ses belong at a Federal Court, they should have some lesser form of relief in some other part of the government, that’s the most serious problem.

(00:10:11)

Now actually, in my experience, pro ses, not in a majority of cases, but not infrequently, have a good case. Now, one of the complications that is not well understood is that often actually the pro se is better off without a lawyer. The pro se who gets a lawyer and then thereby ceases to be a pro se in the technical sense is often going to lose because he is going to have one lawyer, and it’s a lawyer who caters to pro se. So maybe not a very good lawyer, that’s what he has.

And the other side is probably going to have more than one lawyer and they are going to be better lawyers, that’s a very bad position for the pro se to be in and dooms a great many pro se cases.

Jon Amarilio: Isn’t that true of the legal system in general though, poor lawyers going up against better lawyers, better funded lawyers?

Carl Newman: Jon and I are putting ourselves in the latter category.

Jon Amarilio: Hopefully.

Richard Allen Posner: Yes, but here’s the answer. The answer is for the pro se not to have a lawyer. So one of the people in my firm, because I have a firm now, mainly for pro ses.

Jon Amarilio: I want to talk about that in a minute.

Richard Allen Posner: Oh, well, I don’t want to —

Carl Newman: No, no, please.

Richard Allen Posner: Yeah. So anyway, this fellow now works for me, Brian Vukadinovich. So he was a high school teacher and a basketball coach in Northern Indiana and he was fired by the school board. Apparently, according to Brian, Northern Indiana is very corrupt.

So he was very angry at being fired, so he sued. He didn’t want to have a lawyer. He has no legal training, no legal background, he did not want to have a lawyer, he wanted to do it himself. He asked for a jury, got a jury. The trial judge, whom I know, very good federal district judge named Phil Simon, Phil Simon didn’t like Brian at the trial, but the jury liked him and the jury awarded him $203,000 in damages against the school board.

And Phil Simon, I mean I don’t think he was pleased, but he didn’t want to interfere with the jury verdict. So Brian Vukadinovich walks away with $203,000.

This was written. There were articles about this. I learned about him. I wrote him. And the next thing he did, he wrote a pro se manual. It’s very well written. It covers everything in a trial and it’s designed for the pro se who does not want to have a lawyer. It tells them every step of the way what you have to know; you have to know about discovery, you have to know about damages, you have to listen to the judge, you have to do this and that and the other thing, it goes through everything. It’s very well-written.

And I think there’s a lot to the idea that the pro se — I think what happens, it probably may have happened in Brian Vukadinovich’s case, the jury sees that the plaintiff does not have a lawyer, it’s one person, and then they see the defendant, which is usually a fat cat of some sort, a company, government, has multiple lawyers, and the jury is likely to say well, you know, the plaintiff, not a lawyer or anything, but he seemed to be leveling with us, he seemed to know what he was talking about, he seemed like a nice person, and the lawyers for the defendants, for the fat cat, not very attractive.

Jon Amarilio: So maybe a David and Goliath narrative playing out there.

Richard Allen Posner: Exactly. So one of the things I emphasize in my little company is making effort. I mean, you are not going to turn every pro se into an effective self-litigator, but when you meet these people, you want to get a sense of what they are like. Is this someone who could turn into an effective spokesman in front of a jury? What would jurors think of this person? That’s very important. Not just automatically giving him a lawyer.

(00:15:06)

Because also, if you decide to give the pro se a lawyer, the chances are you will be giving him a lawyer who is part of the kind of pro bono, pro se domain. This is his specialty, he helps out these people, and he may be jaded or he may be doing this because he really isn’t a very good lawyer.

Jon Amarilio: Doesn’t have any other option.

Richard Allen Posner: Because there are a lot of lawyers like that, the pro se will often be better off without a lawyer.

Jon Amarilio: It’s interesting.

Carl Newman: Because that was actually one of my questions, just sort of why isn’t the answer just more lawyers, but so I would say, maybe about 20% of federal appeals are direct criminal appeals and those are not all, but a lot of them are publicly provided, publicly funded lawyers. I guess why isn’t that the answer, at least why isn’t it the answer for the roughly 18%, 20% of the cases that are habeas. I mean habeas is so highly specialized and AEDPA makes it almost impossible for anybody to get relief. I can’t imagine that any pro se habeas appellant is ever going to win. It seems to me like shouldn’t we just be talking about government-funded lawyers for at least some of these cases.

Richard Allen Posner: Well, in the case of the — the pro se clearly needs some preparation, even if he is going to be his own lawyer. And one of the things he has to be told is forget about habeas corpus, that’s a dead end, but maybe what that means is simply that a lot of pro ses can’t handle their own cases, but they have to be taught, they have to be helped. They can’t just be thrown into the arena.

One of the things that’s striking, there are enormous number of organizations that either provide lawyers for pro ses or they give money to the firms or individuals who help pro ses. Like the Chicago Bar Foundation is a generous donor. But with all this, it’s just a drop in the bucket. Most of the pro ses do not have any help. So I am trying to help out. I am trying to make this my little company.

Carl Newman: Let’s talk about that, first of all, what’s the name, you have a law firm, is it Posner, LLC, Posner & Associates?

Richard Allen Posner: Originally it was Pro Bono Pro Se Law Group.

Jon Amarilio: So you are going for the direct method there.

Richard Allen Posner: And other people in my firm didn’t like it and they renamed it Team Posner Law Group: Improving Access to American Courts.

Jon Amarilio: Very inspirational. Just so our audience knows, the judge is blushing a little bit when he says that.

And so how is this firm going to operate? Do you have a central office, is it a network of volunteers, are they all lawyers, how does it work?

Richard Allen Posner: It’s very much in its infancy. For example, it doesn’t have — it doesn’t yet have a defined structure, but those are details, that may be resolved tomorrow. I have a meeting with some people.

Jon Amarilio: That’s a cliffhanger, that’s a teaser right there for our audience.

Richard Allen Posner: So the idea is to be a nationwide firm, not just a Chicago firm. It’s to consist of lawyers, maybe the majority, but not by no means for all lawyers, and people with diverse interests and talents and so on. I need donations. I need money so I can pay them.

So at present I have 32 people signed up for me. Majority lawyers, but by no means all, and actually seven of them are my research staff at the University of Chicago Law School. They are students. They are great, very, very valuable.

Jon Amarilio: Especially because they are working for free, right?

Richard Allen Posner: No, but they are paid by the Law School.

Jon Amarilio: Just as great, so free for you.

Richard Allen Posner: Free for me, yeah. So it has been interesting meeting either on telephone, sometimes in person, these people from all over the country.

Jon Amarilio: Can I ask you about one of them that I read about, William Bond, he is a controversial guy from what I have been reading. You volunteered to help represent him in the Fourth Circuit in a pending case he has. He is a homeless, former writer and tennis pro, as I understand it and he is currently litigating a case in the Fourth Circuit, as I said. And he is accusing the federal trial judge who heard his case of colluding with the FBI. Is the article I read accurate there? That strikes me as —

(00:20:15)

Richard Allen Posner: Yeah, I wouldn’t put it quite that way. What happened to him, he started off by suing the Baltimore City Government on the ground that the Baltimore City Government is corrupt.

Jon Amarilio: Anyone who has watched The Wire knows that, yeah, yeah, yeah.

Richard Allen Posner: So according to him the Justice Department for some reason got annoyed with him and they started sending agents to his apartment, who would — they would ask questions like, do you keep firearms in your apartment? He would say no, but they would be asking provocative questions suggesting maybe they knew something and so on.

So that made him very angry. So he brought a federal suit against — maybe there’s — suit against Baltimore might have been — he brought a federal suit against these agents, maybe against the whole Justice Department. And the district judge assigned to the case was very hostile to him and threw out his case.

So he appealed to the Fourth Circuit Court of Appeals. He just sent me an email out of the blue; this is at least probably two months ago, asking for, could I help him. I asked him to send me his papers; he had filed complaints and so on. And I realized when I read his stuff that although he has no background in law; I don’t know what kind of education he has, he is a very skillful writer. I mean he wrote his Second Amendment complaint in his suit against the Justice Department, these officers, it was really well done.

Jon Amarilio: I heard it read like a screenplay.

Richard Allen Posner: But I gave him some pointers. He asked me to file a brief with the Fourth Circuit, and I said, well, I am not a member of the Fourth Circuit. And he said, well, but you could probably, since you just retired as a judge and belong to another bar, you could probably ask them to wave you in for just this case.

So I said, well, actually, I am not a member of any bar, I used to be a member of the New York Bar, which I joined in 1963, but I gave that up a long time ago when I became a judge.

Next thing I know he sends me a detailed statement by the New York Bar about me, in which it says correctly I was admitted to the New York Bar in 1963. I have remained a member in good standing ever since. There are no disciplinary complaints against me.

So the New York Bar has just not learned that I had retired from the New York Bar many years ago. But this is Bond, he is ingenious, he is innovative, he is energetic, and he has gotten me restored at the New York Bar without the New York Bar knowing what has happened.

Jon Amarilio: So is this Team Posner’s first big client?

Richard Allen Posner: So he also persuaded the Clerk’s Office of the Chief Judge of the Fourth Circuit, a fellow named Judge Gregory, and he persuaded the Clerk’s Office to allow me to file a brief in support of Bond, but that was some time ago and I think it’s just stalled. I mean often things get slowed down. So apparently it hasn’t gotten anywhere.

So Bond is a character and he is also very interested in my cat.

Carl Newman: So the way to your heart, for sure.

Jon Amarilio: Yeah, I think he is playing on your heartstrings there.

Richard Allen Posner: My cat Pixie, who ran for president last year.

Jon Amarilio: I think a lot of us probably would have preferred if she won.

Richard Allen Posner: Well, she is going to run again in 2020, by which time we will be fed up with human presidents.

She is a beautiful Maine Coon. She is very civilized, very intelligent, quiet, pleasant.

Carl Newman: All the things you are looking for in a president.

Jon Amarilio: Right. Yeah, I think everyone could wish for that right now.

(00:24:53)

Richard Allen Posner: So Bond knows about Pixie and is very emphatic that he wants me to send him a picture of Pixie, which I am happy to do this.

But he says the picture must be taken against a white background. So I am not sure what to do about that, but I say actually the wall surfaces in our kitchen are white, probably white enough. But then we had this weather last week, right, and now it’s dark, everything is dark.

Carl Newman: For our audience who doesn’t live in Chicago, we went from summer to winter in about a five day period.

Jon Amarilio: It’s a dark place.

Richard Allen Posner: So now I don’t know what to do. I will have to wait for the return of the sunlight. He is harassing me. He wants that picture.

Jon Amarilio: And on that odd note, it’s probably a good place to take a break. We will be right back.

[Music]

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[Music]

Jon Amarilio: Judge, one of the topics I really wanted to talk about with you today that is near and dear to both Carl and my heart as appellate lawyers is independent judicial research. For our audiences this is a phenomenon by which judges go beyond the record, that is beyond the facts that are introduced by the parties and their lawyers and the witnesses, to facts that the judges discover in their own investigation of a case.

You have been a very big advocate of independent judicial research saying that if parties don’t like judges doing it, they should just be sure to include everything in their briefs and save you the bother.

But if we are being fair about it, that kind of research really — it does fly in the face of a long tradition of judges refraining in the American judicial system from looking beyond the record, unless the facts at issue is so well established and uncontroversial that the judge can safely take what’s called judicial notice of the fact.

Would you explain to our audience your views on judges doing their own research and how you came to them?

Richard Allen Posner: Well, I am a maverick, and I don’t really like rules, I don’t like tradition. I want to do what I think is sensible.

So I had a case, I guess this is late 2016, in which I got into a big fight with another judge, David Hamilton; he is a very good judge and I like him, but we got into a big fight.

Jon Amarilio: You are talking about Rowe?

Richard Allen Posner: Yes, Rowe v. Gibson. So this is a person in a prison in the Indianapolis area, and he has gastroesophageal reflux disease. Now, in a mild form that’s just — what is it, when your stomach — you have some acid in it?

Carl Newman: Heartburn.

Richard Allen Posner: Heartburn, yeah, exactly. But in a serious case, which Rowe had, the acid in your stomach backs up into your esophagus and can cause terrible damage, can cause cancer. And so there’s Rowe in prison, he is a bank robber, I think, and he has this disease and there’s a standard treatment with Zantac, which is an over-the-counter pill you take.

And for some reason the prison doctor, who sounded like a nut, he cut off Rowe’s Zantac; I think he cut it off for like two years. When he restored it after this interval, the schedule in the prison had gotten extraordinarily garbled. So he would have his breakfast at 4:30 a.m. and his lunch, dinner at 4:30 p.m., crazy stuff.

Jon Amarilio: So he wasn’t getting the pills at the appropriate time.

Richard Allen Posner: Yeah, he was getting the pills several hours earlier. And my research consisted in part walking into Walgreens and reading the Zantac.

Carl Newman: About when to take it?

(00:29:53)

Richard Allen Posner: Yeah, where they say take it within a half hour or an hour before you eat. So, it’s clear that to take it many hours like 6:30 a.m. when you’re not eating until, I don’t know, noon or something, is very dangerous. So, reading a lay 30:18 that is one piece of extrajudicial research.

Another though was just looking at the websites of reputable hospitals, asking them about when you should take your Xanax, if you have gastroesophageal reflux disease. Like the Mayo Clinic, when they say, half hour an hour before, but the problem is that if you take it more than that, it kind of falls apart in that period.

The Xanax doesn’t remain effective for an indefinite period. So, I thought how could we do better than with Mayo Clinic and I look — I think I looked the Mayo Clinic, the Cleveland Clinic, probably the best clinics in the country, but David Hamilton, the dissenting judge thought this was very improper.

The judge threw out his case, Rose case, on the ground, I mean, this is really ridiculous, on the ground that he didn’t have a lawyer and he didn’t have an expert witness. The only expert witness was this, I thought rather crazy prison doctor. So, the third judge on the panel agreed with me and there was a big fight in the Court of Appeals, several of the judges wanted to have rehearing en banc, they sided with David Hamilton, but it didn’t work, and another thing the District Judge, the reason the District Judge had not appointed a doctor for Rowe, said was that, well, you know, it’s hard to find gastroenterologists. So, I googled gastroenterologists in the Indianapolis area, answer 128, all right.

Jon Amarilio: You remember that number very specifically.

Richard Allen Posner: So, it’s just an example. The ordinary conventional methods of litigation will often not reveal essential facts, which are actually easily obtained and unarguable.

Jon Amarilio: So, that’s a part I’d like to talk to you about because I think the concern from the other side of the debate is that they may be easily obtained but they are arguable. Did you see the recent ProPublica study of the US Supreme Court decisions?

Richard Allen Posner: No.

Jon Amarilio: So ProPublica issued a study, finding in cases where the justices appeared to be doing their own research on scientific or medical issues that they either — well they either did their own research on or they appeared to draw from a Michie briefing.

And they found that the justices got it wrong, more often than they got it right on medical and scientific issues and not just in minor cases either. One of the cases they studied was Justice Roberts’ opinion in Shelby County v. Holder, seminal decision striking down part of the Voting Rights Act.

And he was citing voting registration data to support his contention that registration rates amongst blacks and whites in six southern states were comparable, when in fact for a whole host of reasons they were not. I think that as I understand it, is the concern from people like Judge Hamilton that judges when they’re doing their own research, perhaps unconsciously, are simply finding facts that support the view that they may already have in a case.

Richard Allen Posner: Well, it depends on the court. Now, the Supreme Court is extremely weak and if you want to, you want to talk about Justice Roberts, you can talk about his dissent in the Obergefell’s case. Have you read that?

Jon Amarilio: I have.

Richard Allen Posner: Well, have you read the sentence in which he says that the Kalahari Bushmen, the Han Chinese, the Carthaginians and the Romans – not the Romans, Carthaginians and the Aztecs — Carthaginians, the Aztecs, the Kalahari Bushmen and the Han Chinese all believe that marriage is between a man and a woman.

Jon Amarilio: For our audience, this was the decision that ruled bans on gay marriage unconstitutional.

Richard Allen Posner: His last sentence is, who do we think we are?

(00:34:57)

Now, actually most of us think we are not Han Chinese, we are not Kalahari Bushmen, we are not Carthaginians, we are not even Aztecs. So this was I thought one of the most preposterous sentences ever to appear in a judicial opinion. And I did research, yeah, extrajudicial research, so —

Jon Amarilio: There was an eye-roll there for everybody.

Richard Allen Posner: The Han Chinese, very funny — the Han Chinese, there are actually two separate situations that are called Han Chinese. The Han are the dominant component of the modern Chinese. So, 90% of modern Chinese people are Han, but there was a Han Dynasty between 200 BC and 200 AD and the Han Dynasty, they were wild sexually. So, we don’t know which Han are being discussed and then the Aztecs when —

Jon Amarilio: Big on human sacrifices, I recall.

Richard Allen Posner: Well, they did that also but when the Spanish invaded Mexico, they were shocked by the amount of sodomy and then the Kalahari Bushmen is pathetic, there is southernmost part of Africa and they’re virtually extinct. So, anyway, according to Google no one knows whether the Kalahari Bushmen actually have marital ceremonies, that’s all they were going to say about the Kalahari Bushmen. And as for the Carthaginians, the only thing I found about the Carthaginians was a —

Jon Amarilio: Also making a human sacrifice.

Richard Allen Posner: Yeah, was an Italian professor and he said that well, what happened, when Rome destroyed Carthage in 146 BC, the Carthaginians were scattered over the Roman Empire and they infected the Romans with their sodomy, and as a result, the Roman Empire fell. This is some professor.

Carl Newman: Yeah, yeah, yeah.

Richard Allen Posner: So, this is the back — this is the background — the underbelly of Roberts’ terrible —

Jon Amarilio: So, maybe he picked some wrong examples for his universal truth message.

Carl Newman: Yeah, well, let me follow up on that though for a second because I think your intellectual legacy for judges is going to be legal realism and pragmatic judging as much as it is long economics, I think.

Here’s my question though, I think there are a lot of judges who think they’re doing what you do and they’re not very good at it, and I worry that the judges who are saying, well, I’m just trying to reach a reasonable result and I’m ignoring the president I don’t like and I’m overlooking the facts that I don’t want to put in the opinion because they’re not good for the outcome I want.

I think that they think they are doing pragmatic judging. I think that is exactly what they think they’re doing, and I wonder how do I — one, when that’s what everybody’s doing, what do I tell my client when I’m trying to predict the outcome of a case? And two, how do I tell the good pragmatic judging from the actual that you’re just making it up?

Richard Allen Posner: That’s a good question but the only answer I have is when I see a case to me what a case is it’s a dispute. Okay, two people are disputing, two companies disputing and when you have a dispute, in an ordinary dispute, you don’t have lawyers, you don’t have witnesses, you just have two people disputing and then someone has to settle the dispute.

The judge will just be asking himself or herself who is the better argument, has been more sensible. Now, in my view, that’s really all there is in law. I don’t like the rules, I don’t like the technicalities not much like having the lawyers there.

Jon Amarilio: It’s not the first time ever, you can say that.

Richard Allen Posner: Actually I have — one of the people on my staff is a lawyer in Chicago but he has a very interesting idea, which I really like, and he says that, in most cases we should simply dispense with lawyers in the following sense. No lawyers would be permitted in the courtroom on either side, and the judge will just talk to, ask questions, listen to the two parties, the two disputants, and figure out who makes the most sense, as you might do in a family. You have two kids arguing with each other.

(00:40:02)

You don’t have a lawyer there, but you figure out one has the better of the argument.

Jon Amarilio: So, it’s more of a mediation model for dispute resolution.

Richard Allen Posner: Yeah, exactly, a mediation arbitration, yeah, exactly. Yeah. And I think a lot of judges would find that quite a relief from having to, it’s not only having to listen to lawyers, but it’s having to apply rules that judges may have an imperfect knowledge of and lawyer gets up and explains some complex rule, judge doesn’t really know what it means, what’s going on.

Jon Amarilio: So, you’re saying if I hear you correctly that the formal aspects of the law are interfering with perhaps most practical or sensible ends to these disputes.

Richard Allen Posner: Yeah, exactly, and when you look at the Supreme Court, you match the Supreme Court, does it make any sense at all that there is no compulsory retirement age in the Supreme Court? I don’t think it makes any sense or in the lower courts.

So, one of our — no, it’s not in my court anymore, but one of the judges in the Seventh Circuit Court of Appeals is 91. He’s not enfeebled or anything like that, he doesn’t seem any different from when I started and he was on the court 37 years ago, almost 37 years, but I don’t think you should have judges of that age on a court.

Jon Amarilio: Even if like Judge Bauer all their faculties are there and they’re still very sharp and able to perform the duties of their office?

Richard Allen Posner: Even so because what it means is that you have a position being occupied by one person for a very long time and you’d think that if you had two people splitting the — I mean, he’s been a judge – oh, he’s the District Judge back in the ’70s, so it was really going a long way. If you had successive judges within that period, if you had two judges, each serves for 20 years, they’d be fresher, they wouldn’t get stale, they wouldn’t get tired, bored, you have to, I mean, Judge Bauer does have good – he has a very good memory and so on, but without becoming senile people can certainly become stale because they’ve been doing the same thing for too long. I mean, I did it probably for too long, a 35 and two-thirds years, and on the Supreme Court, there has been a lot of octogenarians on the Supreme Court.

England — England didn’t have a Supreme Court until very recently. They regarded Parliament as the Supreme Court, but now they have a Supreme Court, and when they set it up they decided that judges would have to retire at either 65 or 75, depending on when they were appointed.

Jon Amarilio: I was just over there in the spring actually and got to meet several of them.

Richard Allen Posner: Oh really?

Jon Amarilio: That was a lot of fun. So, it’s a dynamic court the way they have it set up, it’s very interesting.

Richard Allen Posner: That’s interesting because of course, it’s so novel.

Jon Amarilio: Yeah.

Richard Allen Posner: Yeah. That’s very good. So, yeah, I think there should be compulsory retirement in all the courts, 80 at the most.

Carl Newman: Well, even if not compulsory retirement, I mean, you can also have a norm where judges decide to retire, don’t, go out with their feet first.

Richard Allen Posner: You could. It could be a custom, yeah.

Jon Amarilio: Do we still do norms in this country?

Carl Newman: We still have some, we still have some, but — and actually I wanted to ask you this, because it sounds you talked a little bit about your decision to retire, but what’s true for I think. I would ask any federal judge who’s retired in the last couple of months this question, do you have any concerns about this particular president appointing your replacement or is that just sort of like not part of the equation for you, does it not make a difference or is it factoring but ultimately you obviously didn’t change your decision?

Richard Allen Posner: So my retirement created — Judge Williams hasn’t actually retired yet, but I think she’s retiring this month, which is almost over. So there are four vacancies. Now, one has been filled by Amy Barrett of Notre Dame. I think she has been confirmed?

Carl Newman: She has been.

Richard Allen Posner: She has been, yeah. And then I think one other was nominated —

Jon Amarilio: It’s a nominee from Wisconsin. I can’t remember his name.

Richard Allen Posner: Yeah. From Wisconsin, yeah. And then there are two more that are on, including my position and Williams are not filled.

Jon Amarilio: So that’s the five judges right there.

Richard Allen Posner: Four.

(00:45:00)

Jon Amarilio: Or four, excuse me. A real opportunity for the president to reshape the court.

Richard Allen Posner: Well, not entirely. So for example, one of the candidates for replacing me is a former law clerk of mine; very, very smart, very successful, created a huge business. He is very wealthy. He is great. And he was nominated by Trump and blocked by Durbin.

Now, they didn’t block the —

Jon Amarilio: The blogger.

Carl Newman: Well, that would be a home state Senator prerogative, right? You are talking about blue slippings. So Joe Donnelly decided not to block Barrett, yeah.

Richard Allen Posner: So I don’t know about the other two, but I didn’t really think about — the reason I quit, it wasn’t so much that the pro ses were getting a raw deal, which they were, but that I wasn’t being permitted to help them out at all, so I felt frustrated. That’s what I wanted to do and I couldn’t do it so I quit. I wasn’t really thinking about a successor at all.

Carl Newman: Can I ask — I know you have – I think unique of all your colleagues in the Seventh Circuit, you will do this sitting by designation in the District Court and you have talked a lot about how that’s a great experience.

Richard Allen Posner: I think it should be compulsory, also for the Supreme Court justice. I think to be an appellate judge and never have conducted a trial, I think it’s ridiculous. It means you don’t really know — you don’t know like three-fourths of the case.

Jon Amarilio: Do you sort of wish for your vacancy to be filled by somebody who has experience as a judge, already as a District Court trial level judge or something like that?

Richard Allen Posner: Well, either that or be committed to conducting trials as a volunteer. Now, the problem is trials are drying up.

Jon Amarilio: Oh as practicing attorneys we are really well aware of that.

Carl Newman: My client keeps trying cases.

Jon Amarilio: Carl works for the city, which has never any shortage —

Richard Allen Posner: I conducted two criminal trials in 2016, maybe it lapped for a month or so in 2017, it was really fun, I enjoyed that. But when a couple of months later I called up the chief judge, Ruben Castillo at the District Court and said I would like to have another trial. He said, no, we don’t have other trials. There are so few to go around that we can’t allow an outsider.

In fact, it used to be that of people who were indicted, 24% had a trial, then it went down to 5%; this is federal, and now it’s down to 1%, because the maximum sentences are so high that the prosecutor can go the defendant and say, look, you know, if you go to trial and lose, judge sends you to 50 years in prison. Now, he probably won’t do that, but he could. So why don’t we make a deal, we go to this judge and we say judge and we discuss, and we think eight years is enough and the defendant agrees and the judge will say, fine, eight years.

Jon Amarilio: So this is a criticism that often comes up with a federal — criminal judicial system that prosecutors have so much power to leverage, plea bargains, like that essentially becomes a hedging operation. And I take it you are quite the critic of that.

Richard Allen Posner: Yeah, I do not approve of that. Well, the problem is, it goes back to Bill Clinton, who created these very high maximum sentences when he was president, and they are a tool for intimidation, they are not often imposed, but they are a tool. So that’s very unfortunate.

Carl Newman: But then sort of the other side is, on the one hand there’s these enormous maximum possible sentences and so a lot of people plea, but on the other hand, you have the cases that do go to trial are the ones with the stacking mandatory minimums, so you might as well try it because you are doing 100 years anyway. I mean this seems to me like there’s more than one problem there.

I think I have heard a lot of District Court judges, including Judge McCuskey from Central District of Illinois after he retired say, the biggest problem isn’t that everything pleas, the biggest problem is that the prosecutor, because of mandatory minimums, can decide the sentence before anything happens.

But I guess those cases, just because of their nature, maybe not a lot of those really actually end up in the Court of Appeals because what is there to talk about if there’s just a mandatory sentence imposed.

(00:50:01)

Richard Allen Posner: Yeah, that’s true.

Jon Amarilio: That’s probably a good place for us to take a break. We will be right back with our last segment, Stranger than Legal Fiction.

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Jon Amarilio: And we are back. Before we wrap up today, we are going to play a game we like to call Stranger than Legal Fiction. Carl and I have spent countless hours wandering around old and largely abandoned law libraries or just poked around Google, like Judge Posner said, looking for some of the strangest and most arcane laws that are still in the books.

We have each picked one of those real but strange laws. We have each just made another one up completely and we are going to ask each other and our guest Judge Posner which law is real and which law is fake to see which of us can distinguish strange legal fact from fiction.

Judge, are you ready?

Richard Allen Posner: Yeah.

Jon Amarilio: Carl, the honors are yours.

Carl Newman: Yeah. I went into the world of overcriminalization for one of these and of course the scourge, that is long-term parking. So one of these two things is actually a crime, either it’s a crime to park at an Illinois State Police facility over the weekend or it’s a crime to park at a post office for more than 18 hours.

Jon Amarilio: What do you think judge?

Richard Allen Posner: It’s a weekend for the police and it’s did you say 18 hours for a post office? That’s hard. I would say the post office.

Carl Newman: Why?

Richard Allen Posner: Because clearly if you are parking at a police station, if the police don’t like, they see the car, they will —

Carl Newman: Just tow it. They don’t need the help.

Richard Allen Posner: Whereas with the post office, there aren’t going to be police sort of haunting the place and looking for people parking.

Jon Amarilio: I usually play the contrarian on these games, but I like that logic. I am going to go with the judge on this one.

Carl Newman: That’s right. There’s too many federal crimes.

Jon Amarilio: There you go.

Carl Newman: There are too many federal crimes, 18 hours in a post office parking lot is a federal crime.

Jon Amarilio: Wow.

Carl Newman: You could be a federal convict —

Jon Amarilio: What if I just have a lot of mail to send?

Carl Newman: I don’t know, yeah.

Jon Amarilio: You have got a circle.

Carl Newman: I don’t know.

Jon Amarilio: You have got to bring someone in circle.

Carl Newman: Yeah. My one criminal conviction in my entire life is a conviction for a federal crime, not of me, I mean by me as a lawyer, when I was an intern at U.S. Attorney’s Office, I got — batting a thousand on federal crimes because I got a guy convicted of causing a disturbance at a Veterans Affairs facility, it was just somebody who got into a yelling match with somebody at the VA. I got them convicted after a bench trial.

Jon Amarilio: And that guy was not you.

Carl Newman: It was not me, yeah. Got them convicted after a bench trial and they were sentenced to the maximum possible fine for that crime, which was I believe $250.

Jon Amarilio: I mean, I think you have got to put that in your gravestone. All right, option number one, it is illegal in Arizona to allow a donkey to sleep in a bathtub or Alabama is the only state left in the Union in which it is still legal to marry your first cousin. Alabama has obviously been in the news a lot lately so it came to mind.

Judge, what do you think?

Richard Allen Posner: The first state was?

Jon Amarilio: Arizona.

Richard Allen Posner: Let’s see.

Jon Amarilio: You can see the wheels churning.

Richard Allen Posner: Donkey in a bathtub, it’s — well, I think I would vote for the donkey in the bathtub being the more serious crime; the theory that there’s no possible justification for having a donkey in a bathtub. It’s not fair to the donkey. The donkey could very easily damage the bathtub.

Jon Amarilio: Trip trying to get out.

Richard Allen Posner: Especially if the donkey had shoes, had donkey shoes.

Carl Newman: So Richard Posner, animal rights activist.

Richard Allen Posner: Whereas the other one, you could imagine that as being permitted activity.

Jon Amarilio: Okay. Carl, what do you think?

Carl Newman: Boy, is it Arizona, the whole state, because if it was just Phoenix, I would say that’s definitely illegal?

Jon Amarilio: It’s actually a town in Arizona.

Carl Newman: A town in Arizona.

Jon Amarilio: Yes, I should have clarified.

(00:55:00)

Carl Newman: Yeah, okay. Well, there’s lots of crazy towns in Arizona. I am going to guess — sorry, am I guessing the real one or the fake one?

Jon Amarilio: The real one.

Carl Newman: The real one?

Jon Amarilio: Or the fake, it’s basically the same thing.

Carl Newman: I am going to guess you can marry your first cousin in Alabama with a blood test, but you have to get a blood test, but I bet you can do it.

Jon Amarilio: So one is absolutely true and one is kind of true. In fact, it is illegal in Arizona to allow a donkey to sleep in a bathtub.

Richard Allen Posner: It is illegal?

Jon Amarilio: It is illegal. So the story goes — I was curious when I found this one, so I looked it up. That a rancher in Kingman County, Arizona had a donkey who liked to sleep in an abandoned bathtub that he had junked on his ranch. And one day in 1924, a flood came, carried the bathtub and the donkey along with it flew the town, doing a great deal of damage on the way, taking considerable manpower to rescue this darn donkey and right thereafter the town passed a law that made it illegal to allow donkeys to sleep in and I suppose apparently capped in a bathtub.

Carl Newman: Local democracy is the best, right?

Jon Amarilio: It’s really — I really understand what the Founding Fathers were thinking when they came up with Federalism and you see that. Alabama is actually one of 20 states, including the District of Columbia that still allows you to marry your first cousin. And other states like Illinois will allow it with certain conditions. So here’s a fun part about Illinois, you can marry your first cousin but only if you are over 50 or infertile.

Richard Allen Posner: That’s strangely illogical, isn’t it, the over 50 or infertile?

Jon Amarilio: I mean, there are still people in this day and age that are still fertile over 50. But that’s going to be our episode for today, ending on that high note.

Richard Allen Posner: That’s a high note. I’ll Be Dreaming About Donkeys. The only thing that bothers me, wait, was this a special type of bathtub, is that —

Jon Amarilio: You know, I don’t — it didn’t say.

Richard Allen Posner: Because I don’t think a donkey could fit in an ordinary bathtub.

Jon Amarilio: He was a young donkey. I am just thinking out loud here. That’s a good question. I am going to do some more research when I get back to the office.

I want to thank our guest, Retired Judge Richard Posner for joining us and engaging in what is always a fascinating and thought-provoking and turns out pretty fun conversation.

I also want to thank everyone who makes this machine run, including my co-host today Carl Newman, our Executive Producer Jen Byrne, as well as our sound crew Ricardo Islas and Steve Weirich.

Remember, you can follow us and send us comments, questions, episode ideas or just troll us on Facebook, Instagram and Twitter @CBAatthebar. Please also rate us and leave us your feedback on iTunes, Apple Podcasts, Google Play or wherever you download your podcast, it helps us get the word out.

Until next time, for all of us here at the CBA, this is Jon Amarilio and we will see you soon @theBar.

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