"The Supreme Court is awful"

[The Minsky Moment]

Richard Posner, senior judge on a one of the federal appeals court, had some choice words about his bosses on the Supreme Court and judicial colleagues while promoting a book at a local Chicago bookstore.  The excerpted quotes are pulled from the legal gossip blog "Above the Law," the complete video is here: https://www.c-span.org/video/?415557-1/william-domnarski-discusses-richard-posner

I'm actually writing a book now called Strengths and Weaknesses of the American Legal System. It's almost entirely about the federal judiciary.... So I have about ten pages on the strengths and about 320 pages on the weaknesses.

I'm very critical. I don't think the judges are very good. I think the Supreme Court is awful. I think it's reached a real nadir. Probably only a couple of the justices, Breyer and Ginsburg, are qualified. They're okay, they're not great . . .

Of course, the politicians don't care about the quality of judges. They're politicians; they're interested in politics. They're not interested in having good judges.

In the case of the Supreme Court, what has been a tremendous boon to the politicians — it's true of the lower courts also — is that all the federal judges have law clerks. And the Supreme Court justices, and many of the court of appeals judges, have really good law clerks, they're really smart. So the politicians figure, well, we're appointing this person because he or she is of a particular race, or comes from a special part of the country, or this or that, or is liberal or is conservative. And this person is not particularly bright and doesn't have much experience — never been in a trial courtroom, for example — but, there are all these brilliant law clerks working, so their opinions will be all right, because the law clerks will write them.... That's a very serious deficiency in our system, and there are zillions more. . . .

The only two justices who are qualified are Ginsburg and Breyer. Their opinions are readable, and sometimes quite eloquent. The others, I wouldn't waste my time reading their opinions.

Justice Alito's hyperconservative. He wrote a very long dissent, 40 pages. The only thing he said in his dissent was that the case should have been dismissed on the basis of res judicata because some of the plaintiffs attacking the Texas law had filed a previous similar case, which had been dismissed, and you're not supposed to relitigate the identical case. And Breyer, in his majority opinion, discussed this and pointed out there was some overlap in some of the plaintiffs, but there were loads of other plaintiffs who had had nothing to do with the earlier case.

And what he should also have said, which he did not say, is that res judicata is this common-law rule about trying to create finality in litigation, which is fine, but it's not part of the Constitution or anything, and this is an important issue we're trying to get settled — so why should you fuss with res judicata, especially for 40 pages?

. . .

The Supreme Court justices feel under pressure. For one thing, Congress doesn't like the Supreme Court. The Supreme Court has a way of invalidating congressional legislation. So the justices worry about Congress — maybe they won't get raises if Congress doesn't love them — so they want to create some sense of infallibility. So the notion that they decided a case 100 years ago and they're still following it makes it seem like the Supreme Court's really great, they can decide a case and a hundred years later it's still the law. . . .

[Hamilcar]

So the politicians figure, well, we're appointing this person because he or she is of a particular race, or comes from a special part of the country, or this or that, or is liberal or is conservative. And this person is not particularly bright and doesn't have much experience — never been in a trial courtroom, for example — but, there are all these brilliant law clerks working, so their opinions will be all right, because the law clerks will write them....

So identity politics-driven diversity quotas don't select for excellence? Color me shocked.

[HVC]

So the notion that they decided a case 100 years ago and they're still following it makes it seem like the Supreme Court's really great, they can decide a case and a hundred years later it's still the law. . . . 

Isn't that how the law works? Precedence and all that.

[Razgovory]

So the politicians figure, well, we're appointing this person because he or she is of a particular race, or comes from a special part of the country, or this or that, or is liberal or is conservative. And this person is not particularly bright and doesn't have much experience — never been in a trial courtroom, for example — but, there are all these brilliant law clerks working, so their opinions will be all right, because the law clerks will write them....

So identity politics-driven diversity quotas don't select for excellence? Color me shocked.

?

[LaCroix]

ginsburg is one of the two singled out for praise? lol ok posner

[Valmy]

So the politicians figure, well, we're appointing this person because he or she is of a particular race, or comes from a special part of the country, or this or that, or is liberal or is conservative. And this person is not particularly bright and doesn't have much experience — never been in a trial courtroom, for example — but, there are all these brilliant law clerks working, so their opinions will be all right, because the law clerks will write them....

So identity politics-driven diversity quotas don't select for excellence? Color me shocked.

Well it is not like the ones selected for different reasons have been much better, at least according to this guy. Very few of them were selected for being excellent judges, which we have discussed at length on Languish in the past.

[The Minsky Moment]

So the politicians figure, well, we're appointing this person because he or she is of a particular race, or comes from a special part of the country, or this or that, or is liberal or is conservative. And this person is not particularly bright and doesn't have much experience — never been in a trial courtroom, for example — but, there are all these brilliant law clerks working, so their opinions will be all right, because the law clerks will write them....

So identity politics-driven diversity quotas don't select for excellence? Color me shocked.

You need to re-read the statement more carefully, what is saying goes far beyond "identity politics".  Rather politics much more broadly.
I.e. It is clear Posner thinks Alito is a hack, and I don't think he got there because of a need to pander to Italian-Catholics.

[Admiral Yi]

Posner may well be right, but coming from his position as the unofficial 10th justice his comments make him sound a little whiny about being passed over.

[The Minsky Moment]

Posner may well be right, but coming from his position as the unofficial 10th justice his comments make him sound a little whiny about being passed over.

No question about that.

Boil down his criticism and it comes down to the fact that people like him aren't nominated to the Court anymore.

Not that it is such a new problem: Learned Hand never got nominated either, and there were plenty of weak, politically-oriented picks that went in over those years.