Alex Tabarrok of Marginal Revolution writes:
Posner is the only person alive who deserves both a Nobel Prize and to sit on the U.S. Supreme Court. I put greater odds on the former than the latter but I happen to know that he recently visited the White House. Remember where you read it first.
Harumph. Let's hope not. As a conservative, even with strong libertarian leanings, I don't want Posner on the Supreme Court. Why? Although Posner is often described as a "conservative judge," he is nothing of the kind.
Russell Kirk's classic canons of conservative thought include six elements: (1) belief in a transcendent order and natural law; (2) rejection of egalitarianism and utilitarianism; (3) support for class and order; (4) belief in the linkage between freedom and private property; (5) faith in prescription and custom; and (6) recognition that change is not necessarily salutary reform. As I read his body of work, Posner clearly fails #s 1 and 2, and likely fails #s 3 and 5. The only one I'm sure he passes is #4. I'm not going to bother defending those claims at this point, although I will in detail if it ever looks like Alex might be right, largely because Posner himself rejects the conservative label, calling himself a pragmatic classical liberal. Richard A. Posner, Overcoming Law 23 (1995). For those interested in pursuing the disconnect between Posner's jurisprudence and the strand of conservatism that comes down to us from Burke via Russell Kirk, however, I recommend James G. Wilson's article Justice Diffused: A Comparison of Edmund Burke's Conservatism with the Views of Five Conservative, Academic Judges, 40 U. Miami L. Rev. 913 (1986) (Westlaw sub. req'd) and Ernest Young's article Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation, 72 N.C. L. Rev. 619 (1994) (same). (Of course, I do not mean to endorse everything in those articles, such as Young's arguments against judicial deference to democratic majorities.)
If judicial appointments is one of the key areas in which Bush strives to keep his conservative base happy, as many claim, nominating Posner to the Supreme Court would be a political disaster. On the other end of the political spectrum, moreover, can you imagine what Leahy and Schumer would do with his writings on a market in babies?