MR. JUSTICE POSNER? UNPACKING THE STATISTICS STEPHENfJ CHOI & G. MITU GULATI* INTRODUCTION Obscurity defines the lives of most judges in the United States. Judges run trials, issue orders, and write opinions. The media occa- sionally reports on some high-profile case, but rarely focuses on the individual judge who wrote the opinion, issued the order, or ran the trial.1 There are exceptions, of course, such as the O.J. Simp- son trial and the U.S. Supreme Court's decision in Bush v. Gore, when the identities of the judges play a central role in accounts of the cases. But for the most part judges are treated as interchangea- ble cogs in a dispassionate justice system, and this seeming reluc- tance to take account of the individual judge's role extends to most academic discussions of cases that arise at any level other than the Supreme Court. This remains true despite widespread agreement in both the theoretical and empirical literature on judicial behavior that the individual characteristics of a judge will at least sometimes make a difference in determining the outcome of a case. If obscurity defines the careers of most judges, notoriety de- fines that of Judge Richard A. Posner of the Seventh Circuit Court of Appeals. When his opinions are discussed, whether in an aca- * Professors at New York University School of Law and Georgetown University Law Center, respectively. Thanks for helpful conversations with Scott Baker, Robert Blomquist, Devon Carbado, Edeanna Johnson, Ed Kitch, Kim Krawiec, Jim Rossi, Michael Solimine, Larry Solum, David Vladeck, and Un Kyung Park. Thanks also to Chris Kellett for excellent research assistance. 1. One of us used to ask the students in his Securities Regulation class every year to fill out a note card listing, among other things, the names of five active federal judges (not justices) whose cases the students had found interesting in prior classes. The purpose of the exercise was to put together a set of cases that the students would enjoy for the "recent cases" portion of the class. The justices on the Supreme Court were explicitly excluded because the Court decides very few Securities Regulation cases and all of the important ones are assigned to the stu- dents anyway. Among the names that frequently showed up on the students' note cards were Brennan, Holmes, Cardozo, Friendly, and Hand (all dead and, there- fore, definitely not active); Rehnquist, Scalia, and O'Connor (alive, but all justices on the Supreme Court); and Judy (apparently a judge on television). Needless to say, the note cards did not serve their intended purpose. But it was interesting that there was one name that made it onto 487 out of the approximately 500 note cards that were filled out before we gave up handing them out: Judge Richard A. Posner. 19 Imaged with the Permission of N.Y.U. Annual Survey of American Law 20 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 61:19 demic context or in the media, his name is likely to be invoked. This notoriety is such that he has been profiled in the pages of the New Yorker,2 debated Ronald Dworkin in the New York Review of Books,3 excoriated the 9/11 Commission Report in the pages of the New York Times Book Review, 4 criticized the field of critical-race the- ory in the pages of the New Republic,5 and used the opportunity of delivering the Holmes lectures at Harvard Law School to condemn the entire field of moral philosophy as producing work of little or no value to legal analysis. 6 He has written best-selling books rang- ing from his classic treatise on the economic analysis of law7 to books covering sex, literature, aging, the federal courts, public in- tellectuals, and moral philosophy, all the way to the Monica 8 Lewinksy affair. It is no news thatJudge Posner is ajudicial, academic, and me- dia star. Whether they would agree with his ideas or not-and the present authors would take exception with more than a few-most academics would agree that Posner is one of the most creative thinkers in the recent history of the legal academy. He is also one of the fathers of the "law and economics" movement. Two decades ago, this field occupied the margins of the legal academy; now, thanks largely to the ubiquitous Posner, it dominates significant portions. Posner's contributions to basic areas such as antitrust, contracts, torts, discrimination, sexual harassment, evidence, intel- lectual property, and judicial behavior (the list could go on) are 2. Larissa MacFarquhar, The Bench Burner, THE NEW YORKER, Dec. 10, 2001, at 78. There have, of course, been many other articles about Judge Posner (many of which are nominally in the form of book reviews of something that Posner wrote, but spend a good deal of time discussing Posner himself). See, e.g.,James Ryerson, The OutrageousPragmatism ofJudge Richard Posner, LINGUA FRANCA, May/June 2000, at 26. 3. Emily Bazelon, Sounding Off, LEGAL AR., Nov./Dec. 2002, at 30, 31 (describing the debate between Posner and Dworkin in the pages of the New York Review of Books). 4. Richard A. Posner, The 9/11 Report: A Dissent, N.Y. TIMES BOOK REV., Aug. 29, 2004, at 1. 5. Richard A. Posner, The Skin Trade, THE NEW REPUBLIC, Oct. 13, 1997, at 40. 6. Richard A. Posner, 1997 Oliver Wendell Holmes Lectures: The Problematics of Moral and Legal Theory, 111 HARv. L. REv. 1637 (1998). 7. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW (6th ed., 2003). 8. RICHARD A. POSNER, SEX AND REASON (1992); RICHARD A. POSNER, LAW AND LITERATURE (rev. and enlarged ed., 1998); RICHARD A. POSNER, AGING AND OLD AGE (1995); RCHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM (1996); RCHARD A. POSNER, PUBLIC INTELLECTUALS: A STUDY OF DECLINE (2001); RICHARD A. POSNER, THE PROBLEMATICS OF MORAL AND LEGAL THEORY (1999); RICHARD A. POSNER, AN AFTAIR OF STATE: THE INVESTIGATION, IMPEACHMENT, AND TRIAL OF PRESIDENT CLINTON (1999). Imaged with the Permission of N.Y.U. Annual Survey of American Law 2005] MR. JUSTICE POSNER? considered so foundational that they are often the starting point for law school discussions of the topics, even where the professor is us- ing Posner only as a foil to make her own point about how the doctrine in question should be understood. Posner has also pro- duced foundational scholarship in areas yet untapped by most legal academics: what, for example, are the optimal regulatory responses to epidemics such as AIDS and obesity?9 Why, given his creativity, notoriety, academic achievement, and more than twenty years on the Seventh Circuit Court of Appeals, has Judge Posner not been elevated to the Supreme Court? A Su- preme Court justice plays a very different role from that of a pro- vocative academic or public intellectual. Would Posner's success on the Seventh Circuit translate into a successful stint on the Supreme Court? We don't know. Nevertheless, we argue that, given Posner's long career as ajudge, data exists that can provide at least a starting point to evaluate his fitness for the job of Supreme Court justice. In a recent article, "Choosing the Next Supreme CourtJustice: An Empirical Ranking of Judge Performance" (referred to in this essay as the "Choosing article"), we reported that Judge Posner far outdid his judicial colleagues by almost every measure we used.10 We intended a simplistic empirical analysis, one that would, at best, represent a first analysis ofjudicial performance at the circuit-court level, an analysis that would invite further investigation. Our hope was that by setting forth objective measures of what most people would view as related to merit, we could place the burden on politi- cians to explain in more detail the justifications behind the choices of nominees to the Court. Once confronted with a ranking based on objective character- istics, we envisaged several ways politicians and others could look behind the numbers to assess the true merits of a nominee. For example, for any given high-scoring judge, what factors underlay 9. See ToMAsJ. PHILIPSON & RIcHARD A. POSNER, PRIVATE CHOICES AND PUBLIC HEALTH: THE AIDS EPIDEMIC IN AN ECONOMIC PERSPECTIVE (1993); Tomas Philip- son & Richard A. Posner, Public Spending on AIDS Education: An Economic Analysis, 37J.L. & ECON. 17 (1994); TomasJ. Philipson & Richard A. Posner, The Long-Run Growth in Obesity as a Function of Technological Change (Nat'l Bureau of Econ. Re- search, Working Paper No. 7423, 1999), available at http://www.nber.org/papers/ w7423.pdf. 10. See StephenJ. Choi & G. Mitu Gulati, Choosing the Next Supreme Court Jus- tice: An Empirical Ranking of Judge Performance, 78 S. CAL. L. REV. 23 (2004). Our work stands on the shoulders of others who pioneered the empirical examination of judicial performance including most prominently William M. Landes, Lawrence Lessig & Michael E. Solimine, Judicial Influence: A CitationAnalysis of Federal Court of Appeals Judges, 27J. LEGAL STUD. 271 (1998). Imaged with the Permission of N.Y.U. Annual Survey of American Law 22 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 61:19 the high scores? Were the high scores really representative of ex- traordinary performance or were they the result of luck? Did they suggest a venal judge who successfully gamed the system or a judge who in fact attempted to do justice, display judicial temperament, and be fair?"1 In the present paper, we make a preliminary attempt to look behind the numbers for Posner. What drives his high scores? What does that tell us about him and his fitness for the high court? For the active federal circuit-court judges during the 1998 to 2000 period who were still active as of 2003 (there were ninety-eight of them), we report data drawn from our Choosing article on three categories of judicial performance: productivity, quality, and inde- pendence.