Excerpts from
Larissa MacFarquhar's profile of Richard Posner, judge on the Seventh Circuit Court of Appeals, and (in)famous public intellectual:
"In hearing a case, [Posner] doesn't first inquire into the constricting dictates of precedent; instead, he comes up with what strikes him as a sensible solution, then looks to see whether precedent excludes it. In 1991, he ruled that a group of deputy sheriffs who, without a warrant or probable cause, assisted with the seizure of a mobile home had not violated the Fourth Amendment because, rather than entering the house, they had removed it whole. (This finding was reversed unanimously by the Supreme Court, whose sarcastic opinion called it "creative.") "He relishes facts, the more obscure and Counterintuitive the better, but as rhetorical weapons rather than as data. His accounts of the world are sometimes so eccentric as to be almost Martian. He has argued, for instance, that a higher proportion of black women than white women are fat because the supply of eligible black men is limited; thus, black women find the likelihood of profit from an elegant figure too small to compensate for the costs of dieting. As John Donohue, a law professor at Stanford, delicately puts it, “A little bit of empirical support goes a long way for him."
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"[In his book "Sex and Reason," Posner] speculated, for instance, that high heels were considered sexy because they suggested that a Woman was incapable of running away from her spouse-while others were contentious, such as his suggestion that normal men would rape women and seduce children if there were no laws against it (it's the ones who do it in spite of the risk of punishment who are the real weirdoes). One of his most controversial recommendations was that the current adoption system be replaced by a free market in babies, which, he maintained, by offering financial incentives to biological mothers, would make both would-be parents and potential sellers better off. In "Sex and Reason," he explained that he was advocating not the selling of babies so much as the selling of parental rights - he was not, after all, suggesting that babies be sold as slaves or organ donors - but the clarification did not, somehow, have the impact of the original argument, and "baby-selling" has since become one of the primary slogans of his notoriety.
"Sex and Reason" exhibited in a particularly colourful fashion one of Posner's ongoing contradictions-that between his libertarian instincts and his attraction to the practical straightforwardness of utilitarianism. On the one hand, he declares himself a liberal of the nineteenth-century ilk - a view he summarizes, paraphrasing John Stuart Mill (in a phrase that takes on a certain je ne sais quoi in a book about sex), as "Your rights end where his nose begins." On the other hand, he argues that people's moral beliefs are the product of intractable emotions like sympathy and disgust, and so those emotions must be taken into account in a calculation of social welfare. "Disgust when sufficiently widespread," he writes, "is as solid a basis for legal regulation as tangible harm." Thus, while he talks admiringly of anti-moralistic sexual mores in Sweden, at the same time he argues that the practical fact that homophobia exists in the military is a compelling reason to exclude gay people.In "Sex and Reason," Posner was interested in conscious sexual choices, but he is also committed to a theory of unconscious rationality: socio-biology. He is a thoroughgoing Darwinian, and believes that many of the social and moral ideas commonly held to be cultural are in fact traceable to the dictates of reproduction. He subscribes to the idea, for instance, that altruism derives from the evolutionary imperative to perpetuate one's genes by taking care of those who share them. This coheres nicely with his general economic approach. As he puts it, "Economic theory is closely related to the theory of evolution... . Evolution deals with unconscious maximizers, the genes; economics with conscious maximizers, persons.
Sociobiology might seem to be an odd idea for a libertarian to be attracted to-most libertarians are committed, after all, to the idea that human choices are freely made rather than determined by forces beyond conscious control - but Posner does not feel a sentimental attachment to the idea of freedom. He is a libertarian of an instrumental, utilitarian sort: he simply believes that libertarian policies, in social life as in markets, will tend to maximize wealth and happiness. Liberty; for him, is a pragmatic principle, not a moral one.
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Posner loves cute animals of all kinds, except dogs. He dislikes dogs partly out of a sense of duty-he feels that, given his commitment to cats, it would not be quite proper for him to like dogs as well. But it is also the canine personality that he finds distasteful. Years ago, when he and Charlene lived in Washington, they owned a Norwegian elkhound of servile disposition, poignantly misnamed Fang; whenever anyone evinced the slightest displeasure with him, Fang's lips would tremble with anxiety, and Posner found this irritating. Posner is an ardent fan of monkeys, his instinctive attraction perhaps bolstered by his socio-biological sense that monkeys are basically humans with fewer affectations. A couple of years ago, he watched a nature program about baboons, and found them so delightful that he decided to call the zoo and adopt one.
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Posner doesn't like to waste time, so he sticks to a routine (he calls himself "rigid and Germanic"). But it is not just his regular habits that allow him to be as productive as he is: he has structured his life so as to free his mind from any distractions whatsoever. Charlene is in charge of all the domestic arrangements: Posner describes their relationship as the traditional Jewish one, in which the pasty-faced scholar husband stays home and studies while the wife attends to worldly activities. Until a few weeks ago, Posner had never used an A. T.M.-when he needed cash, he took it from Charlene's wallet.
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Posner is content, as it happens, but content isn't what he set out to be. One reason he could never be a liberal (in the current sense of the word) is that, like many conservatives, he finds the idea of ordinary happiness uninspiring. He has no interest in a politics whose goal is to give people shelter and enough to eat. He loves fierceness and glory and heroism. When he looks into the future, he sees a rationalized, disenchanted world-a Scandinavian-style utopia in which people are dull and sated and genius has disappeared from the earth. "No sane person," he says, "not even I, would, for the sake of aesthetics, try to restore the Athenian slave state, the High Renaissance, the Russian Revolution, world wars, et cetera. The price is too high. But life will lack risk and savour."
Posner grew up in New York - first in Manhattan and then in Scarsdale. His mother's relatives were Jews from Vienna who looked down on his father's family, which was from Romania and poorer than they were. "They were all poor, Posner says, but my mothers family had toilet paper, and my father's family had newspaper." His mother was a Communist and was friendly with the family that adopted the Rosenberg children. The day Stalin died was a day of mourning in the Posner household. Posner's mother taught in the New York City public schools. His father had a chequered career: as a young man, he worked in a jewellery business with some cousins; then, having attended law school at night, he became a criminal-defence lawyer. After the Second World War, he became a moneylender, specializing in second mortgages in New York slums; he was so successful at this that he bought a Cadillac and, in 1948, moved his family to Scarsdale.
When Posner grew more conservative (he thought of himself as a liberal until he was thirty or so), his mother was horrified. "We had terrible fights," he says. "I became really furious at her. See, she was one of these bright fools, my mother-quite a bright person, but very limited. The other thing that annoyed me about her was that I worried about her politics interfering with my career. Every time I got a government job, I always felt obligated to tell the authorities that I had this mother who had probably been a Communist. It was an annoying piece of baggage. Then eventually she became senile and forgot about politics and actually became very benign. Both Charlene and I breathed a sigh of relief." Looking back on his red-diaper childhood, Posner considers his parents hypocrites. "It was just talk," he says of their radicalism. "They wanted me to live the same conventional life that they lived."
Both Posner's parents lived into their nineties. "My mother, in the course of her decline, broke her hip," Posner says. "In the olden days, people broke their hips and died, which was great; now they fix them." After his mother broke her hip, his father found it difficult to take care of her, so his parents moved to assisted-living facilities in Chicago. When his father grew very frail and sick, Posner asked the gerontologist what the point of keeping him alive with all these procedures was; the doctor informed him that termination of care had to be voluntary. "Because my father was more or less compos mentis and wanted treatment, you couldn’t deny it, Posner says. Growing up the way he did, struggling the way he did, the notion of giving up, not fighting to the end, was anathema to him. I hope my generation can be a little more rational about this. I'd like to choose my own time of exit.
"I don't know if this is true of everybody;" Posner says, "but I loved my parents when I was growing up and they were really the sort of parents you should be grateful to-my mother gave me great cultural enrichment, and my father helped me buy our first house, so they were ideal parents. But my thoughts about them are dominated by their old age. I don't make allowances: when I think about them, there's no affection. Charlene thinks I'm a little bit unnatural about my family. But so many people have these decrepit, horrible old parents, and then they're so upset when they die at ninety; and regard it as a medical failure that the doctors didn't do this and didn't do that. My father was even annoyed when my mother died-he thought the doctors hadn't tended her carefully enough-though by the time she died she couldn't speak, she couldn't use her hands, she wasn't human. And it's not as if you had a cute animal with the same mental ability-when you see human beings like that, you don't think, Well, she's on the level of a chipmunk." Asked what he felt when both his parents had died, he looked puzzled, as though the question didn't make sense to him. "I don't have any feeling about it," he said.
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Posner is as much aesthete as analyst; more than a clever rebuttal he relishes mastery of tone. One of his favourite terms of abuse is "maladroit." He appreciates the lumbering, earnest activist only as a comic character, and he is positively allergic to rectitude. "Some people take pride in being 'good,' which is to say better than most other people," he writes. "But that is pride rather than morality. It is related to the striving for status."
What Posner really despises, though, is, as he sees it, the whining, sanctimonious pedantry of moral philosophers. Asking oneself whether one's beliefs are justified, he feels, is an esoteric, self-indulgent business, practiced only by those safely ensconced in tenure. Ordinary people are unreflective, simply believing whatever they believe; moreover, moral reflection has never persuaded anyone to change his mind or pursue one course of action over another, and thus is a deluded and useless activity. "Knowing the moral thing to do," he writes, "furnishes no motive, and creates no motivation, for doing it." (The contention that no one has ever been persuaded by a moral argument, and that non-philosophers never question their beliefs, strikes his philosophical critics as so obviously wrong that they have tended to throw up their hands rather than rebut it.) Posner contrasts the academic philosopher with what he calls "moral entrepreneurs,” such as Martin Luther King or the feminist Catharine MacKinnon (whom Posner admires despite disagreeing with her politics): those who, through sheer charisma and rhetorical force, sweep people headlong out of their accustomed inertia and inspire new moralities altogether.
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Posner says that he has always liked Yeats because Yeats is a "full-fledged Nietzschean." Nietzsche is perhaps the philosopher who has had the deepest influence on Posner. Posner takes from him a conception of morality (made by humans, not found in the world), a conception of ethics (tenth-hand bromides, clung to by those lacking the courage or imagination to think for themselves), and, most of all, an intellectual temperament (delighting in muscular language and the power to shock). Explaining his attraction to Nietzsche, he says, "The idea - a bit banal, I'm afraid, when stated in summary form - is that a person is responsible for his own life. External forces and events are just the raw materials out of which we make a life, and we have no right to blame anyone else for the result because it was ours to make or muff This is a philosophy; or a psychology, basically optimistic, cheerful, and forward-looking, of self-assertion, of liberation from oppressive frameworks such as that created by religion or other dogmas."
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Toward the end of the sixties, however, Posner began to move to the right, because he disliked the disorder of the student riots. Then, in 1968, while he was teaching at Stanford, he met two conservative economists from the University of Chicago, Aaron Director and George Stigler. Having been raised to believe that conservatives were evil, Posner was surprised to discover that he liked these economists. He concluded, first, that politics and personality had nothing to do with each other, and then, as he became more interested in economics, he found that he agreed with them. He moved to the University of Chicago the next year.
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Posner's sense of the importance of legal rhetoric was rather more extensive, however, than that of the Scribes fellows nostalgic for a more ornamental era. In his book about the Bush-Gore election, for instance, Posner claimed that the main problem with the Supreme Court's decision favouring Bush was its rhetorical incompetence. It was the pragmatically correct verdict because it averted the danger of a political crisis, but the judges were at fault for failing to cloak their obviously pragmatic decree in convincing legal jargon. Posner delights in the brinkmanship of clever rhetoric. The trick, he feels, is to be as frank as possible about the pragmatic motives behind a decision, while clothing them in just enough formalist legal language to enable the decision to pass as a legitimate judicial move. In an ideal world, Posner believes, everyone would be as pragmatic about justice as he is, and judges would be able to be brazenly candid about their reasoning, as was his hero, Oliver Wendell Holmes; meanwhile, though, rhetoric is fun.
For the past ten years or so, Posner has called himself a pragmatist, meaning that he believes that there is no objective way to choose between incompatible moral positions. Pragmatism has a bracingly impious air that he finds exhilarating. "Politics is about enmity," he says. "It's about getting together with your friends and knocking off your enemies. The basic fallacy of liberalism is the idea that if we get together with reasonable people we can agree on everything. But you can't agree: strife is ineradicable, a fundamental part of nature, in storms and in human relations."
Posner likes to argue that judges do not confront moral issues-only questions of strategy. He claims, for instance, that in Brown v. Board of Education the Court made its decision against segregation on the purely instrumental ground that segregation had been found to injure black students' self esteem-though most people would view the decision that black self-esteem was a consideration of legal relevance as a moral one, and by no means uncontroversial in 1954. It is one of Posner's most persistent and confounding convictions that it is possible to practice a purely "pragmatic" jurisprudence. He argues that since there is no objective way to discover the definitive meaning of an ambiguous law, judges should ignore highfalutin morality talk and simply make decisions based on what is sensible and conducive to social welfare-disregarding the obvious fact that deciding what is sensible and conducive to social welfare is a controversial business in which moral principles are inevitably at stake. This problem has been pointed out to Posner many times, and he has conceded it many times, but he always slides back again into his old ways.
For years, Posner had no solution, but recently he has been reading Carl Schmitt, and he has now come up with one. Schmitt was an early-twentieth-century German political theorist who believed that there is no objective way to settle moral or political disputes because all beliefs are the beliefs of a particular Volk, or cultural group, and there is no such thing as a universal rationality capable of mediating between them. Schmitt concluded that the only way to insure stability was to extract from society people whose beliefs were incompatible with those of the majority, and he used this argument to support Nazism's expulsion of Jews from the judiciary. While this scandalous pedigree lends Schmitt's theory, for Posner, a certain frisson, Posner himself uses Schmitt's logic to argue for the opposite conclusions.
In the book that he is now writing, "Law, Pragmatism, and Democracy," Posner argues that, since America contains so many irreconcilable points of view, and since it is hopeless to try to assimilate these points of view into one harmonious legal philosophy, the solution is to insure that the different points of view are represented in different judges. (In this way, oddly, both
Schmitt and Posner are espousing a version of multiculturalism: they believe that different populations will always have different points of view, and that universal rationality is a myth.) One individual judge, Posner reasons, will never be able to put aside his personal disgusts and instincts, so the trick is to have lots of different judges whose instincts clash, and hope that, in the end, their views will cancel out in such a way as to approximate fairness. Of course, this is not a philosophy to comfort any particular defendant facing a hostile reception; but that, Posner believes, is just the nature of life in a diverse society, and covering it up with a lot of obscurantist talk about liberal principles will not, in the end, make any difference. (Larissa MacFarquhar, The New Yorker, Dec 10, 2001).
