Why is Judicial Biography So Hard To Write?

by Peter Conti-Brown — Wednesday, Sept. 7, 2016

I don’t envy the reading load that William Domnarski undertook on his way to writing his biography of Richard Posner. By his account in an interview, he read all of Posner’s judicial opinions, numbering some 3,000. And then he read “most of them for the second time,” and “some for the third time.” He then “read all Posner’s books (more than fifty), about ten for the second time, and all the reviews of the books.” He also read “more than five hundred articles by Posner and all the important articles about his books, articles, and opinions.” Taking on the most prolific legal scholar and judge in several generations required a big reading commitment, and Domnarski didn’t shy away from it.

But was all that reading necessary? Indeed, was it even desirable? I think the answer to both questions is “no.” In fact I think the temptation to “read everything,” as Domnarski put it, makes writing judicial biography a hazardous undertaking. Judges produce a lot of paper, but it’s a mistake to assume that production tells us much about what makes a subject worthy of a biography. Richard Posner is certainly worthy of biography, but Domnarski’s book isn’t really it.

There is much about Domnarski’s Posner that is insightful and illuminating. Posner’s youth as the child of radicals was fascinating, as was Posner’s precocious, pugnacious intellect on display throughout his youth (a youth that more or less ended with his graduation from law school; Posner was only 23 when he graduated from Harvard). For example, we see him teaching high school geometry…while taking high school geometry.  He was a grade grubber par excellence, contesting a grade he received in a college moral philosophy course with a 1700-word missive that acknowledged his disdain for moral philosophy, with “its puritan righteousness, its antiquated vocabulary, its theological predilections, its flavor of impossible alienation from life, art, and the world.” Given that his professor was a moral philosopher, Posner could “well understand your annoyance at [Posner’s critiques], since, were they justified, they would destroy your raison d’etre as a moral philosopher.”

We catch similar kinds of glimpses of Posner the scholar and his successful efforts to make a lasting impact. Law and economics owes much of its existence and a significant degree of its early articulations to Posner, contributions that Posner knew he was making and sought to defend, fiercely. In one amusing anecdote, we see Posner the young scholar chided by an economics editor for too much self citation. On Domnarski’s account, Posner responded that “he pretty much had to cite himself because he had written most of the secondary literature.” Later, we see Posner chastising Richard Epstein for making similar kinds of arguments about outsized importance that, Posner believed, Epstein hadn’t earned. “[A]ll of us have had the experience of thinking up an idea on our own and then finding it somewhere in the literature already. When that happens we have to acknowledge that someone beat us to the punch, and then we go on from there.” Epstein, while making important contributions, was not on Posner’s level.

Probably the most intellectually interesting parts of the book involved Posner’s rivalry with Ronald Dworkin, who had taken opposing views on a number of questions, whether about the utility of moral philosophy (Posner’s undergraduate skepticism never really changed) or the ethics of a sitting judge providing legal analysis of the Clinton impeachment process. This second question took me to this exchange (and here) in the New York Review of Books, a clash of titans that is as instructive for its lessons in rhetoric as it is on substance.

I should note, too, that Domnarski largely stays out of his own way as a prose stylist. He may well have internalized Posner’s advice to a younger colleague that “[p]eople not gifted with a sense of style, you and me for example, should strive to write unaffectedly and plainly.” Richard Posner the book doesn’t display the author’s gift for a sense of style, but Domnarski does write unaffectedly and plainly. I read the book in two sittings, and the pause was an interruption, not a break.

All that praise aside, I finished the book feeling that Domnarski had missed his mark. Anyone who has followed the recent kerfuffle between Posner and the late Justice Scalia, or has read much of Posner’s recent writings, or seen his interviews, won’t be surprised by what Domnarski reveals. And perhaps that’s because Posner is so transparent in his public persona. It’s not an act; the same brilliant, if sometimes churlish undergraduate still berates scholars, colleagues, and lawyers before him. (An aside: even this reputation, Domnarski insists, isn’t really well deserved. The really churlish figure in this story is…Frank Easterbrook. For reasons that elude me entirely but still entertained, Domnarski pulls extensive quotes about Easterbrook’s bad behavior on the bench throughout the second half of the book.)

But that can’t be the whole story. First of all, Posner is a product of his times, and we get very little insight into those times from this biography. Why was Posner an early Reagan appointment? What was the Reagan Coalition, and how did it include evangelical Christianity at its heart and Richard Posner, a (barely) cultural Jew, in its head? We get a little (but only a little) of the Clinton scandal, but what was happening in the US—politically, culturally, economically—during the era that would make Posner’s intervention such a controversial one? And perhaps the greatest missed opportunity is a discussion of what changed Posner’s outlook. If he was never a right-wing conservative, why is he in 2016 associated so much more on the center-left when it comes to the legal and political debates of our day (voting fraud, same-sex marriage, financial reform, gun control), when he had been in the 1980s a warrior in the Reagan Revolution?  Did he leave the Republican Party, or did the Republican Party leave him? If you want to know much about Posner’s times, you’ll need to look elsewhere.

You may also need to look elsewhere for Posner’s life. We know next to nothing about Posner the man after he puts on the judicial robe. We know almost nothing about Posner’s family, or his self-conception as father, husband, or grandfather. Eric Posner, Posner’s son, is nowhere in this book, for example, and Posner’s wife is mentioned only in passing. That Eric Posner is also one of the most influential legal scholars of his generation is a remarkable fact. Pick your favorite famous father-son duo who plowed more or less the same ground: the George Bushes, the Oliver Wendell Holmes, or for a better analogies, the Robert Mertons or the Arthur Schlesingers. Telling the father’s full story would require talking about the son. Excluding this relationship must have been a strategic decision, but it’s not one I think many biographers would readily defend.

Unless, of course, judicial biography isn’t really biography at all. One of Richard Posner’s chief demerits is how tediously formulaic it became: each chapter summarizes judicial opinions, then lawyer surveys, then citation counts, and then scholarly reviews. It becomes more of reader’s digest than a historical study. And even for those who enjoy reading judicial opinions—and I’m sometimes one of them—this exercise becomes quickly tiresome. I ended up reading, then skimming, then skipping these sections toward the end.

I agree with someone who wrote on Twitter (that I can’t find again) that they always like judicial biographies until the part when the person becomes a judge.  The reality is that judges do mostly boring work, what makes them famous is almost never the pure legal doctrine they produce behind the bench, and that treating judicial output as a primary, essential, or even particularly illuminating documentary source is a mistake.

There’s another telling paragraph in Richard Posner that perhaps provides the answer. In summarizing Posner’s review of another judicial biography, Gerald Gunther’s Learned Hand, we get some insight perhaps not into Richard Posner, but into William Domnarski. Posner wrote a qualified review of Gunther’s book, faulting the author, as Domnarski reports it, “for not writing enough about Hand the judge.” Posner wanted more law; Gunther provides some law, but so much more historical and personal context. There are pages and pages devoted to analyzing the famous Hand formula for determining negligence in Richard Posner; Gerald Gunther didn’t bring it up at all.

Domnarski seems to have taken his subject’s criticism to heart. There is an awful lot of law in Richard Posner. What I wish there were more of was Richard Posner.

UPDATE: The “someone who wrote on Twitte” is found! Raffi Melkonian wrote that he finds “judicial bios interesting until the point is reached that the subject becomes a judge.” I agree, but it doesn’t have to be this way. It’s the assumption that we need expansive summaries of judicial opinions in these biographies that throws the genre off its game.

 

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About Peter Conti-Brown

Conti-Brown is an assistant professor at The Wharton School of the University of Pennsylvania. A historian and a legal scholar, Conti-Brown focuses on central banking, financial regulation, and public finance.

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2 thoughts on “Why is Judicial Biography So Hard To Write?

  1. david m. o'brien

    Your review was a waste of time. Have you ever written a judicial biography? It is a lot easier to write such a short blog entry than a biography.

    Reply
  2. anon

    ‘ He may well have internalized Posner’s advice to a younger colleague that “[p]eople not gifted with a sense of style, you and me for example, should strive to write unaffectedly and plainly.” ’

    You failed to note that the “younger colleague” in question was … Bruce Ackerman.

    Reply

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