Tuesday, September 4, 2012

Posner-Scalia feud heats up

As Reader(s)™ know, Justice Scalia wrote a book with Bryan Garner about canons of interpretation. Reader(s) also know that Judge Richard Posner has recently had some choice words for Justice Scalia. Today, these two threads of Gillette-Torvik Blog coverage come together to weave a cocoon of horror. Judge Posner has written a review of Justice Scalia's new book.

The review is not positive. It is also exceptionally long—some 5000 words. I confess I quit reading less than half way through, so I cannot recommend it. Luckily, however, Ed Whelan (a former Scalia law clerk) has written what amounts to a review of Posner's review at the National Review Online. It, too, is rather long, but at least Whelan had the good sense (and bandwidth, I guess) to publish his review in three parts (I, II, and III), so he was able to build up some suspense.

According to Whelan, the core of Posner's attack on Scalia is a charge that Scalia misrepresents six cases that he relies on to illustrate his interpretive canons. Whelan says this is false, and that it is in fact Posner who is misrepresenting the cases and misrepresenting Scalia's use of them. Of course, it's impossible to come to an informed opinion about who's right without reading the book, the reviews, and the cases—and I'm not going to do that because I have clients to represent and sports to watch. But Whelan's case against Posner (and for Scalia) appears rather convincing on its face.

Whelan pulls no punches, ending with a direct attack on Posner's standing as a public intellectual and his performance as a judge:
Over the years, a number of appellate lawyers who follow the Seventh Circuit have conveyed to me their astonishment at how sloppy Posner is as a judge. I had a similar reaction to his badly flawed book about judging. Nonetheless, Posner clearly has somehow acquired a reputation that inclines folks to credit his judgments. 
It is no small matter that Posner has abused his reputation to smear Scalia and Garner with his incendiary and ill-founded charge that they have broadly misrepresented the cases that they discuss. (It would, of course, not be a surprise if Scalia and Garner turn out to have made a small number of errors among the more than 600 cases they cite, but Posner has uncovered none.) Posner owes Scalia and Garner a prominent retraction and apology.


More here.

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