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It’s Jewish Judge vs. Jewish Judge: Posner Bad-Mouths Ginsburg, Breyer, Kagan

By Daniel J. Solomon October 26, 2016

Federal judges tend to have a strict sense of professionalism, commenting on and overruling each others’ verdicts with all due respect. But Richard Posner, the crotchety and loquacious jurist on the federal appeals court in Chicago, had no gumption about bad-mouthing his colleagues – even his fellow Jews — on the Supreme Court.

At a discussion hosted this month at a Chicago bookstore and filmed by C-Span, Posner didn’t mince his words. “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,” he said.

Breyer is one of the Court’s lower-key figures, but it’s certain that Posner’s comment wouldn’t sit right with the most ardent “RBG” fans. And what about the Court’s other Jewish member, Elena Kagan? She was the dean of Harvard Law School, after all.

Posner blamed the situation on politics and the presence of law clerks, who do the grunt work of judging by writing opinions for their bosses.

“Of course, the politicians don’t care about the quality of judges. They’re politicians… They’re not interested in having good judges,” he said.

According to Posner, the assistance of good clerks leads politicians to look past judicial qualifications and make other considerations in appointing judges. “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,” he said, imagining their thought process.

“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,” he added.

One of the leading scholars on the federal bench, Posner teaches law at the University of Chicago and has written acclaimed works such as “Sex and Reason. He has adopted a moderate conservative tack in his role on the Seventh Circuit Court of Appeals, which covers the Midwest.

This is not the first time that he’s directed harsh words at the justices. Before Antonin Scalia died this February, Posner ran an op-ed in The New York Times that blasted the late jurist over his dissents to Court decisions that established marriage equality as the law of the land.

“Justice Scalia seems to want to turn the Constitution upside down when it comes to government and religion,” Posner wrote. “His political ideal verges on majoritarian theocracy.”

Contact Daniel J. Solomon at solomon@forward.com or on Twitter @DanielJSolomon

Daniel J. Solomon is the former Assistant to the Editor/News Writer at the Forward. Originally from Queens, he attended Harvard as an undergraduate, where he wrote his senior thesis on French-Jewish intellectual history. He is excited to have returned to New York after his time in Massachusetts. Daniel’s passions include folk music, cycling, and pointed argument.

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