Judge Posner Profiled in Columbia Journalism Review

Judging Richard: One of America's most influential judges seems to take a dim view of journalism, but the record reveals a more complicated case
John Giuffo
Columbia Journalism Review
November 10, 2005

Cindy Ferrier stands when the judge calls her name and takes the podium quickly and confidently. She sets a binder on the ledge, identifies herself to the three-judge panel of the Seventh Circuit Court of Appeals, and prepares to defend a post-9/11 deportation order.

A Moroccan immigrant named Jellal Benslimane is being deported because of a missing form, and he's here today to appeal the immigration judge's order. The immigration court wanted the government to turn over a copy of the form, which Benslimane had earlier submitted, but the Justice Department (representing the Department of Homeland Security, which had absorbed the Immigration and Naturalization Service) declined. No reason -- it just didn't turn over the evidence. So now Ferrier, a Justice Department attorney, is in this Chicago courtroom defending her superiors' recalcitrance.

Judge Richard Posner waits, cheek on hand, while a fellow judge questions the young lawyer. This particular late September Friday has been slow, routine, but when the subject of the missing form is broached, Posner leans in, his indignation more audible than visible.

"Why didn't DHS give him a copy?"

"It's clear from the record that the judge was frustrated with DHS," Ferrier concedes.

"Look, I don't understand. He files the thing. The DHS has a copy. It loses the copy. So you're going to deport a person because you lost it?"

"Oh, I don't think DHS . . . "

"Pardon me, you didn't lose the copy? You have the copy?"

"What is happening is that . . . "

"You have the copy?"

"DHS . . . INS . . . at that point there was . . . at that point . . . . " She stammers and explains that "there was some confusion."

Posner looks exasperated. "Do you have any idea of what we are doing to these appeals? Does the Justice Department have any idea of what is happening to your cases in this court?"

Having come prepared to defend one immigration case, Ferrier finds herself discussing the Justice Department's deportation proceedings as a whole. "I believe that . . . I believe that they are aware. Yes."

This uneasy scene continues for a few minutes. Ferrier holds tight to the podium until the small red bulb near her right hand is lit, signaling that her time is up. Posner sends her packing with a message to her bosses: clean up your act.

Judges are not wallflowers, but Posner's pugnacity and impatience, his willingness to confront bureaucracy with practicality, and his tendency to catch people off-guard are attributes for which he has become known. There are others: Posner is the most prolific federal judge in American history. In addition to more than 2,200 published opinions, he's written thirty-eight books on a dizzying array of topics, from Monicagate to aging to intelligence reform, and more than 300 articles, op-ed pieces, reviews, and essays -- including a recent blockbuster about the press. Along with Gary Becker, a Nobel economist in the monetarist Milton Friedman mold, he maintains a blog (www.becker-posner-blog.com) on which they tag-team on the finer points of everything from plagiarism to whether it's cost-beneficial to fully rebuild New Orleans. He's a professor at the University of Chicago Law School.He edits the American Law and Economics Review and is the founder of the Journal of Legal Studies.

In legal circles, he's best known as an architect of, and primary cheerleader for, a market-deterministic school of legal thought known as "law and economics," an extension of the Friedman philosophy that seeks to explain behavior and mediate disputes according to economic rules. Posner brought economic ideas into law in a new way, and he has had an enormous impact. "Posner is one of the most influential judges in the country," says Floyd Abrams, the First Amendment lawyer, echoing the opinion of almost everyone I spoke to who has an opinion about the judge. "What he says is often not only read but taken serious account of by judges who sit far from the Seventh Circuit."

That's not particularly good news for journalists since Posner, in recent years, has brought his influence -- and his pugnacity -- to bear on the press. Posner seems to have little use for the notion that news is a product that deserves a higher legal status than, say, jet engines or soybeans. One influential opinion attached a heavy chain around the neck of the hope that the Supreme Court will grant journalists the right to remain silent about sources when prosecutors come calling. Another opinion threatens to strip First Amendment protections from student journalists. Yet when you study the record, a Judge Richard Posner emerges who has also, at times, been a staunch defender of newsgathering, including investigative reporting. So, journalistically speaking, he's complicated.

We get a view into Posner's thinking about the press from an essay, "Bad News," that he recently wrote for The New York Times Book Review. It was ambitious: a five-thousand-word attempt to explain all the news industry's woes in one grand unified theory, ostensibly using eight widely varied books about the press as a jumping-off point. The essay falls on its face. It's a mix of perceptive observations, unsupported assertions, and some tortured logic, all seen through a market-oriented lens that often seems inadequate for the job.

Posner begins by restating the competing ideological critiques of the news media, segues into a theoretical economic explanation for news bias, attributes much of the press's woes to its inability to compete with the blogosphere, and ends by arguing that since the situation is mainly the product of economic forces and technological challenges, and that since elites who care a lot about news and issues (most people don't, he says) are being well served, "maybe there isn't much to fret about."

In response to Posner's argument, Bill Keller, the Times's executive editor, wrote a fiery letter to his own newspaper, calling Posner's essay "mostly a regurgitation, as tendentious and cynical as the worst of the books he consumed." He accused the judge of not making "distinctions within the vast category of American media," of swallowing "almost uncritically the conventional hogwash of partisan critics on both sides," and of the misguided application of market determinism principles to his analysis of media behavior. Harsh stuff, made all the harsher for its lack of precedent. No executive editor in the paper's 154-year history has ever been so at odds with a piece as to prompt an intramural flame war.

"Posner pissed me off, frankly," says Keller, in an interview not long after his letter was printed. "I'm not objecting to the fact that we ran the piece -- this is an argument that exists in the world, and it might as well exist in our pages. Having run it, I wanted to make sure it was answered." Posner, who was approached by a Times editor to write the piece in the first place, was taken aback by Keller's blast. "I thought it was preposterous," he tells me. "It made Keller sound as if he didn't have any control over his own newspaper."

Keller was hardly the only journalist to take a shot at the essay. Along with his letter, the August 21 Book Review included angry ones from, among others, Bill Moyers, who criticized Posner's denigration of "the people's need to know," and Eric Alterman, who accused Posner of "ideological sleight of hand." That's not to mention a number of online articles and blog posts. Jack Shafer, in his August 1 Slate column, cited numerous weaknesses in "Bad News." Among other things, he pulled apart Posner's assertion that eroding trust in the news media, as measured between 1973 and 2002, was partly due to the fact that "blogs have exposed errors by the mainstream media that might otherwise have gone undiscovered." Shafer pointed out that blogs hadn't entered the mainstream consciousness before 2002, and details a Nexis search to support his argument.

A general lack of factual support is one of the chief flaws of "Bad News." Posner makes statements like, "The rise of the conservative Fox News Channel caused CNN to shift to the left" -- a unique and interesting idea, subscribed to by almost no one, and presented with absolutely no support other than Posner's faith in its obviousness.

"You can't really give evidence with the space they gave me," Posner tells me. "They gave me a five-thousand-word limit." Besides, he continues, "journalists don't provide support for what they say, why should I?" Such statements leave Posner open to charges of hostility to the press and a lack of understanding of its values and mission.

So do some of his rulings. "Judge Posner is certainly no fan of the press and no admirer of broad rulings of the Supreme Court, including those by Justice William Brennan, for whom he clerked, protecting the press," says Floyd Abrams. "It seems to me there is a certain sourness, even bile, in much of his discussion of the behavior of the press."

Abrams seems to have a point. Brennan voted in 1972 with the minority in Branzburg v. Hayes, a historic case in which the majority rejected the idea that reporters should not have to testify about their sources in criminal cases. But many Supreme Court observers say the Court kept the door open for such protections in the future with a concurring opinion by Justice Lewis Powell. It said developments in the law might give rise to a court-recognized reporters' privilege, freeing them from having to reveal their sources in most situations. First Amendment advocates maintain that the spread of state shield laws -- thirty-one states and the District of Columbia now have them -- are the "developments" Powell foresaw.

But Posner dismissed the notion, in a 2003 case called McKevitt v. Pallasch, in which an Irish court wanted interview tapes from three Chicago newspaper reporters who were working together on a book. They eventually surrendered their tapes. But that didn't stop Posner from issuing an opinion after the case was closed that dismissed most of post-Branzburg case law. "There was this terrible misunderstanding by the lower middle courts of Branzburg," Posner says. "There's no privilege. The Supreme Court says there's no privilege."

Posner defends the timing of the opinion, in which he spoke for the full court, saying it's not unusual for a court to explain its reasoning after a decision has been delivered, as was the case here. But others are troubled by the manner in which the opinion was rendered. "The McKevitt decision was one of several things that finally eviscerated any claim we had to a reporter's privilege under the First Amendment," says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "What I personally found offensive was that the decision came out of nowhere -- no briefing, no oral arguments." Victor Kovner, a partner at Davis, Wright and Tremain, who wrote an amici brief in support of Pallasch, says that "Posner, unfortunately, read Branzburg broadly -- overbroadly, in our opinion, and rejected a host of post-Branzburg jurisprudence -- without the benefit of a briefing, without the benefit of hearing from the press."

But beyond arguing that the Supreme Court never sanctioned a reporter's privilege, Posner, in explaining his thinking to me, goes one step further and insists there shouldn't be such a privilege, that a reporter's need to get access to sensitive information about government should be weighed against the needs of prosecutors. "With a reporter's privilege, if you can hide your sources, how do we know that your reporting is accurate?" Posner asks. "Your sources may be major criminals, or the information they are secreting is information that might have great value."

Posner believes that sources will continue to leak sensitive information even if the reporters they leak to can be prosecuted for failing to name the source.

When I asked him how he would have voted in the Pentagon Papers case, Posner answers: "I'd be inclined to be of the view that the government can prevent the publication of classified materials. I would think that if it's unlawful for Daniel Ellsberg to take these documents out of the Pentagon, then I think it would be equally improper for a newspaper to publish the material."

Posner doesn't seem very impressed with journalists, or with arguments that their central watchdog function should provide them any special legal protection. His disdain for moral arguments about journalism's role in society (he finds morality to be a poor tool in the law in general) is evident in another recent Seventh Circuit decision, Hosty v. Carter. The ruling seems to extend the First Amendment-abridging reasoning the Supreme Court laid out in the controversial 1988 decision about high school journalism, Hazelwood v. Kuhlmeier, to the university level. In Hazelwood, Justice Byron White, writing for the majority, argued, "educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns." Critics say Hosty tempts college administrators with the same right of prior review.

Posner explains his thinking on this in terms of the market, creatively injecting into the mixture issues of competition for tuition dollars between public and private schools. "I think whenever you have a public and private sector providing basically identical services, you don't want the law to treat the two differently, otherwise you destroy the competitive balance," he explains, pointing out that since private universities can censor, public schools that can't are in an unfair competitive position. "Market concerns," he says, "should be weighed with the First Amendment rights of college journalists."

Judge Posner's chambers, on the twenty-seventh floor of the Dirksen Federal Building, are covered with the byproducts of the practice of law. That's where I wait for Posner one Friday in late September, while he confers with his two colleagues about the morning's arguments. I scan the room for traces of personality amid the spines and sheets. Evidence books and briefs are piled on a side table near his green leather sofa -- the least cluttered corner of his office. His blinds are drawn, and I ask his assistant, Charlene Purcell, if that's Lake Michigan I glimpse through the slats. "Yes!" she says excitedly, and steps over a cart laden with law to raise the dull white blinds. "But the judge doesn't really pay attention to that sort of thing," she says. "He's usually focused on his work." The blinds slide up, the lake sparkles below; white sailboats sprinkle the water in the marina just beyond Millennium Park. It should be against the law to leave such windows shrouded.

One shelf is chock-a-block with personal snapshots -- an island of familial warmth in a sea of cold legal thought. On another wall hangs a portrait of Posner by Martin Schoeller from the December 2001 New Yorker, which accompanied a profile by Larissa MacFarquhar that painted a portrait of a complex and emotionally tone-deaf man. In the photo, he stands stiff, unsmiling, in a doorway holding his beloved cat, Dinah, who seems to be slipping out of his hands in the way that cats who don't like to be held fight their way out of hugs. "I have exactly the same personality as my cat," he told MacFarquhar. "I am cold, furtive, callous, snobbish, selfish, and playful, but with a streak of cruelty." Multiple copies of two of his collected works, one in Spanish, the other in Japanese, are stacked just below the portrait, ready to catch Dinah should she fall out of the frame.

Soon enough Posner returns and we ride a private elevator to street level, cross Jackson Avenue, and settle into a sumptuous lunch at the Standard Club -- a regular haunt, where the waiters greet him with "good afternoon, your honor," and fellow club members nod in solemn recognition: "Judge. How are you?"

Between bites of shrimp, I ask him about the Schoeller print, and he relates the story of asking for a copy and being told the going rate was $ 1,500. At this, he was taken aback, and he asked an editor at The New Yorker if there wasn't anything that could be done to bring down the price. Shortly afterward, the photo agency informed him that he could have two prints for $ 65 -- market determinism at work.

Posner the lunch companion is worlds away from Posner the judicial Goliath. He's quiet, a patient listener when questioned, and quick to laugh. He's enthusiastic about his work, and he's excited about his new book, Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11. With a lighter load this fall -- he's not teaching this semester -- he's looking forward to the extra time. There are more articles and blog posts waiting to be written. "Instead of playing golf, I write," he tells me. "It's a peculiar type of leisure-time activity."

Edward Morrison, one of Posner's clerks during the 2000-2001 session and now a Columbia University law professor, calls his former boss "a leading light of the law." "Many students entering law school know about Judge Posner," he says, "and by the end of their first year, I would say every student knows about Judge Posner."

Norman Dorsen, a former president of the American Civil Liberties Union and a longtime New York University law professor who helped write the petitioner's brief in Roe v. Wade, praises Posner's intellect. "Brennan was a friend of mine, and he said to me once that he only met two geniuses in all his years. One was Justice William O. Douglas, and the other was Dick Posner," Dorsen says. "Brennan wouldn't have used the word genius lightly."

Nevertheless, Dorsen attributes Posner's shortcomings to the very thing that makes him remarkable -- his output. "His biggest problem, despite his almost Herculean talents, is that he writes so much, on so many different subjects, that he gets sometimes less effective than his talents would permit."

Critics also complain about what they say is Posner's occasionally contorted logic. The Chicago Council of Lawyers, in a 1994 evaluation of Posner's record and reputation conducted for lawyers to gauge the judges of the Seventh Circuit, found that "Judge Posner often looks for ways to modify or overturn settled precedent when he does not care for the outcome that precedent might dictate." After speaking to a host of lawyers, former clerks, and others, the council described his style as occasionally "flip and breezy, conveying the impression that the litigants' concerns are not important."

The council also argued: "His frequent abridgment of the facts has provoked negative comments from his colleagues . . . this approach leaves Judge Posner open to the charge that he distorts the facts to fit a desired outcome."

Posner disagrees. "I've written more than two thousand opinions," he explains. "The vast majority are majority opinions; the vast majority are unanimous. I don't remember any colleague of mine having said I doctored the facts."

The council was also critical of Posner's law-and-economics views when, as his critics argue, the market proves less than ideal for explaining behavior effectively, as with civil rights or sexual politics. Posner's critics say that his perspective can lead him down Alice's rabbit hole -- to serious discussions of whether babies up for adoption should go to the highest bidder, for example (in 1978), or to odd theories of the economic causes of obesity in black women (a market lack -- through imprisonment -- of available black men, causing black women to let themselves go, he wrote in a 2003 article titled "The Long-Run Growth in Obesity as a Function of Technological Change").

Posner doesn't worry much about criticism, and he's not fazed by the council's report. "You have here some anonymous people who are talking to the Chicago Council of Lawyers. How much credence should we put on these people?" he says. "They can be sore losers. They can be crybabies."

When it comes to the press and First Amendment issues, meanwhile, the judge cannot be pigeonholed. There are times when he seems guided not by the market but instead by simple pragmatism. In a much-lauded opinion from 2001 that helped extend First Amendment protections to video games, Posner, writing for the majority, dismissed Indianapolis city officials' attempts to limit the access children have to violent video games, and argued, "To shield children right up to the age of eighteen from exposure to violent descriptions and images would not only be quixotic but deforming; it would leave them unequipped to cope with the world as we know it." The Supreme Court later denied an appeal.

A year earlier, in Desnick v. ABC, Posner, again writing for the majority, affirmed Sam Donaldson's and ABC's ability to go undercover to expose medical scams. ABC News had sent undercover testers to pose as patients. The plaintiff sued ABC, but the district court found that ABC exhibited no "actual malice." The clinic appealed to Posner's court, but Posner wasn't buying. "ABC was not reckless in stating . . . facts establishing a pattern of herding elderly patients into unneeded cataract surgery," Posner wrote, thereby protecting a journalistic tradition of going undercover that goes back to Nellie Bly.

Then there's Posner's defense in 1993 of one of the basic tenets of long-form journalism -- the ability to use a case study involving unwilling subjects to make a broader argument. In Haynes v. Alfred A. Knopf, he wrote the majority opinion, which found Nicholas Lemann, now the dean of Columbia's journalism school, not guilty of libel and invasion of privacy in publishing his 1991 book, The Promised Land: The Great Black Migration and How It Changed America. In the book, Lemann used personal history and family details of Luther and Dorothy Haynes to illustrate larger trends about migration patterns, and the Hayneses, unhappy to have been used as Lemann's illustration, sued. Posner, in his affirmation of a lower court ruling, wrote, "Lemann's methodology places the individual case history at center stage. If he cannot tell the story of Ruby Daniels [Haynes's ex-wife and one of the women at the center of the book] without waivers from every person who she thinks did her wrong, he cannot write this book."

Haynes is "a rather ringing defense of the right to use people's lives to illustrate important social economic trends," says David Anderson, a law professor at the University of Texas and a former journalist and editor of the Texas Law Review. "That case has been quite influential, and has had a very salutary effect on the freedom of the press."

"I was completely and absolutely thrilled," says Lemann, who takes care to say, though, that his experience isn't the norm when it comes to Posner's First Amendment decisions: "It was somewhat un-Posner-like."

So which is the real Posner? The privilege-gutting keeper of governmental secrets, ready to throw reporters in jail for resisting the prosecutorial demands of the Irish legal system, or the investigative-journalism-defending avatar of the people's right to know what Sam Donaldson finds out undercover? Both, really. Posner navigates his own way through the shoals of jurisprudence with his faith in his intellect as his primary guide.

Indeed, one thread that connects all of his disparate writings and unpredictable decisions is his absolute faith in himself and his interpretive powers. In Breaking the Deadlock, his rushed-to-print book about the Supreme Court's decision in Bush v. Gore, and in a subsequent, heated exchange in 2001 with Alan Dershowitz on Slate, Posner defended the Supreme Court's decision not on legal grounds, which he conceded were questionable, but on the ground that the Court's actions reflected a valid but unacknowledged motivation: namely, averting the dread "constitutional crisis."

Posner argues further that "candor is a scarce commodity in judicial opinions," while, at the same time, maintaining that obfuscation doesn't necessarily de-legitimize the opinion. "These are public documents, and no public document is going to be fully candid." He's quick, however, to set himself apart from those types of judges. "I do try to be candid; I try not to hide my reasoning," he tells me. "I don't think my opinions really read like the opinions of other judges. Most judicial opinions have a lot of hot air in them."

So Posner is an expert on other judges' opinions, too. Nothing seems to faze him: natural catastrophe, the Supreme Court's decision in the 2000 election, the Clinton impeachment, the 9/11 commission report, The Problematics of Moral and Legal Theory, sex, antitrust law, economics. The self-assuredness that leads Posner down so many different paths is the same confidence that leads him to believe that, until he weighed in, judges and lawyers have simply been confused about Branzburg these thirty-three years.

Still, for every decisio