Posner’s complaint

I would say that NPR’s Nina Totenberg coaxed some provocative comments from Seventh Circuit Judge Richard Posner criticizing conservatives, but I don’t think Totenberg had to work too hard to elicit them. Posner freely offers them up and Totenberg is almost beside herself with giddiness. An audio clip is posted with Totengerg’s story at the link. Listen for yourself.

Totenberg reports:

Posner expressed admiration for President Ronald Reagan and the economist Milton Friedman, two pillars of conservatism. But over the past 10 years, Posner said, “there’s been a real deterioration in conservative thinking. And that has to lead people to re-examine and modify their thinking.”

“I’ve become less conservative since the Republican Party started becoming goofy,” he said.

Totenberg offers no specifics, so it is difficult to discern Posner’s frame of reference or to respond. I think most conservatives and Republicans seek to follow in the footsteps of Reagan and Friedman. Where are we straying? Perhaps Totenberg was too overcome with Schadenfreude to follow up. When the conversation descends to specifics, they do not seem to bear directly on Posner’s observation. They relate to the leaks over Chief Justice Roberts’s deliberation over the Obamacare case and to the conservative critiques of his opinion for the Court:

Posner…speculated that the leaks about the deliberations over the national health care law — which are apparently designed to discredit Chief Justice John Roberts’ opinion upholding the law — would backfire. “I think these right-wingers who are blasting Roberts are making a very serious mistake,” he said.

“Because if you put [yourself] in his position … what’s he supposed to think? That he finds his allies to be a bunch of crackpots? Does that help the conservative movement? I mean, what would you do if you were Roberts? All the sudden you find out that the people you thought were your friends have turned against you, they despise you, they mistreat you, they leak to the press. What do you do? Do you become more conservative? Or do you say, ‘What am I doing with this crowd of lunatics?’ Right? Maybe you have to re-examine your position.”

So the conservative critiques of Roberts’s opinion are the work of “crackpots.” Again, it would be nice to have some idea whom he is talking about, a coherent criticism of their critiques, or a defense of Roberts’s unusual opinion in substance. Instead Posner simply serves up childish name-calling.

Posner also assumes that the leaks from the Supreme Court came from conservatives at the Court. How does he know? Who are they? If Posner knows, he apparently isn’t saying.

There is nothing unusual or untoward about conservative activists and legal scholars criticizing a Supreme Court opinion, even one by a conservative justice. But it is unusual for a sitting federal appellate judge to criticize his superiors, as Posner does Justice Scalia in this recent Slate column.

Posner’s implicit theory that conservatives should silently defer to Roberts’s opinion lest they drive Roberts into the camp of the left is also silly, if not absurd. Moreover, it seems disrespectful of the Chief Justice of the United States to suggest that he would be driven by petty personal concerns. As Posner himself might ask, where is the evidence? And if it exists, doesn’t it reflect poorly on Roberts rather than his conservative critics?

Posner’s comments are not those of a crackpot, to use his language. But they nevertheless seem to me remarkably ill-considered for a man of Posner’s stature.

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