With the New York Times raising the (somewhat indelicate) question of who will replace Chief Justice William Rehnquist, one name is notably absent from the Times' list of plausible candidates; namely, that of Seventh Circuit Court of Appeals Juidge Richard Posner. There was a time when no list of possible Supreme Court nominations by a Republican President was complete without Posner's name. Now age clearly counts against him (he's 66). Even if he were 10 or 20 years younger, however, I would argue against moving Posner up to the Supreme Court? I summarized the argument in a December '03 post, in which I opined:
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, ... 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?
Simply put, Richard Posner is no conservative. On social issues, in particular, he simply cannot be trusted. For a Republican to put him on the bench invites the same sort of disappointments GOP Presidents suffered with appointments like Earl Warren, John Paul Stevens, or David Souter. Except that Posner's a lot smarter than those three, which makes him even more dangerous.
