A Tale of Two Posners Richard A. Posner Public Intellectuals Harvard 2001 David J. Garrow udge Richard A. Posner is without has dismissively criticized as “sloppy” and doubt the dominant legal intellect of this “slapdash.”5 Jage. The good Judge Posner authors Dinah the cat is unlikely ever to seek analytically impressive opinions for the United retribution for her depiction in the pages of States Court of Appeals for the Seventh The New Yorker, but scores if not hundreds of Circuit1 and oftentimes writes thoughtful and self-imagined “public intellectuals” will now erudite books.2 But, alas, the good Judge have an easy time making fun of Posner’s Posner is not the only Posner, for the bad Judge embarrassingly bad eÖort at providing a send- Posner not only has the audacity to tell a up of their egotistically unworthy endeavors.6 portraitist for a national magazine that he, like Reviewer after reviewer has weighed in on his beloved cat, Dinah, has “a streak of what a methodological hash Posner has made cruelty,”3 but now he has gone and published a of his subject while attempting to assemble a volume entitled Public Intellectuals: A Study of group portrait of those who merit inclusion in Decline,4 which the New York Times Book Review what might be viewed as potentially august David J. Garrow is the Presidential Distinguished Professor at Emory University School of Law and the author of Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (rev. ed. 1998) and Bearing the Cross (1986), a Pulitzer Prize-winning biography of Martin Luther King, Jr. 1 See, e.g., Planned Parenthood of Wisconsin v. Doyle, 162 F.3d 463 (ca7 1998), and Hope Clinic v. Ryan, 195 F.3d 857, 876 (ca7 1999) (Posner, J., dissenting). 2 See, e.g., Cardozo: A Study in Reputation (Chicago: University of Chicago Press, 1990). 3 Larissa MacFarquhar, “The Bench Burner,” The New Yorker, 10 December 2001, 78, 79. 4 Cambridge: Harvard University Press, 2001. 5 David Brooks, “Notes From A Hanging Judge,” New York Times Book Review, 13 January 2002, 9. 6 As Posner notes, the origins of the term lie in Russell Jacoby’s 1987 book, The Last Intellectuals: American Culture in the Age of Academe. 337 David J. Garrow company. Many critics have rightfully com- particular game quite fast. Yet Posner’s sloppi- plained about the remarkable arbitrariness ness – and that of his presumed editors – with which some particular individuals have should not be quickly dismissed. On page been included or excluded from Posner’s long twenty-nine of Public Intellectuals one may be but variegated lists of “PIs.” surprised to see Posner characterize the late Easy laughs come at the expense both of Irving Howe, who for many years taught as a some of those he mistakenly included – professor of English at the City University of right-wing television talking head Ann New York Graduate Center, as a “nonaca- Coulter is an “intellectual”?7 – as well as of demic” “PI”. But Posner corrects his error – or some whom he inexplicably overlooked – at least confuses his reader – very swiftly how about Michael Eric Dyson, for indeed, for on the very next page Professor example?8 Maybe Judge Posner doesn’t watch Howe is correctly described as an “academic” bet. Some detect an under-representation of PI. Did anyone proofread this book prior to left/liberals in the Posnerian intellectual publication? Apparently not, but what is universe,9 while others rightly note a vast evident here ought to raise a most serious overrepresentation of – surprise surprise – question in Posner’s mind about whether his law professors and economists.10 But Posner’s amazingly copious productivity has now capriciousness is breathtaking. He excluded reached a point of declining returns. prominent law professor and death penalty But the methodological imprecision and opponent Anthony Amsterdam on the general carelessness of Public Intellectuals also grounds that Amsterdam is an “activist,” yet quite surprisingly carries over into the very Amsterdam’s colleague Derrick Bell – who concepts that ought to form the heart of the also litigated on behalf of the naacp Legal book, had the project been carefully and Defense and Education Fund before joining critically thought out. By the time that some the professoriate and eventually migrating to readers reach chapter four – many will have New York University Law School – is fallen by the wayside long before that point – included. Go Õgure. Posner confesses to they ought to be excused for feeling completely excluding New York Times columnist Maureen befuddled when Posner instructs them that Dowd on the grounds that she is “not very “[t]he most inÔuential journalists and com- ‘intellectual’” – how right can you be? – but mentators may be getting their ideas directly fellow Times-man William SaÕre and knee- from the academic source rather than from jerk conservative George Will somehow public-intellectual translators.” Now wait just a merit inclusion. And Posner’s generousness minute. The preceding chapters are all replete toward some liberals likewise approaches if – see the names noted above – with almost con- not quite equals the Coulter Standard: stant invocations concerning the “intellectual” Sidney Blumenthal, Susan Faludi, and Jack status of journalist after journalist. And, NewÕeld? C’mon. equally worse, the apparent thesis of this book is But most readers should tire of this that the increasing dominance of academics as 7 See Carlin Romano, “Critic at Large,” The Chronicle Review, http://chronicle.com/weekly/v48/i22/ 22b02001.htm (visited 5 February 2002). 8 See David J. Garrow, “The Man Who Was King,” New York Review of Books, 13 April 2000, 40 (reviewing Michael Eric Dyson, I May Not Get There With You: The True Martin Luther King, Jr.). 9 See Romano, note 7 supra. 10 Posner may think this is defensible. See Public Intellectuals at 173 (“we see a marked increase [over time] in the percentage of public intellectuals who are either lawyers or economists”). 338 5 Green Bag 2d 337 A Tale of Two Posners public intellectuals is largely responsible for the display their wares. Three major categories supposed qualitative “decline” that Posner dominate the horizon. First, countless print or highlights in his sub-title. So now the reader is broadcast news stories utilize brief quotations being informed that both journalists/ from ostensibly relevant PIs who presumably commentators and at least some sub-set of bring at least some special knowledge to the academia are categorically distinct from PIs. subject at hand. These media-selected voices The impression that the good judge has not are contacted by reporters or producers who done his most basic homework with maximum are seeking either to fulÕll the professional care, and that this book has to a considerable requirement that every story has at least two degree been collated or compiled out of previ- sides or the widespread desire to Õnd some ously published articles, rather than carefully “independent” voice who happens to articulate honed, is unfortunately quite unavoidable.11 precisely the journalist’s own point of view. In The demerits of Public Intellectuals are thus the Õrst instance, a PI has to be a partisan; in extremely considerable, especially in execution the second, a PI has to be a voice of insight, as well as in formulation, but Judge Posner’s nuance, or cynicism. initial instinct or idea for the book – and Second, broadcast media, especially the instinct is indeed likely the better word – was seemingly ever-expanding universe of cable not by any means erroneous or poorly targeted. television news shows, require “talking heads” Posner’s instinctive hostility is focused upon to take up air time. “Talk radio” “phoners” what he views quite correctly as the utter pioneered this use of publicity-hungry PIs long unresponsiveness of the “market” for public before cnn, Fox, and the multiplicity of intellectuals to inept or indeed consistently networks whose initials end in “nbc” expanded erroneous job performance by widely- the demand many times over. In these venues, celebrated purveyors. Ergo Judge Posner has a the length of one’s sentences and the avoidance defensibly clear idea of what it is he doesn’t like, of multiple “ums” and “you knows” are the but even his most broad-stroke presumptions crucial performance standards. about why this state of aÖairs has come to exist Third, many newspapers and some maga- suÖer from some misconceptions that greatly zines of course publish “byline” pieces blinder his otherwise really quite inclusive authored by PIs. In the common imagination, explorations. this involves a Õerce and oftentimes futile Posner’s market-oriented worldview leads competition to appear on the “op-ed” page of him to imagine that the societal demand for the New York Times or the Washington Post. In public intellectuals is genuine rather than truth, however, far and away the most common almost wholly generated from within news way in which PIs appear in general circulation media organizations themselves. For Posner, media is as book reviewers examining the “[t]he media are conduits for the demand of newly-published work of other PIs. The mod- the general public rather than the primary est visibility and widespread distribution of demanders themselves.” He could not be more such assignments suggest their limited utility wrong. for anyone who seeks to advance her worldview, Think for a few moments about the major or even her simple name recognition, with any venues and arenas in which public intellectuals wider public. 11 In the closing Acknowledgments in Public Intellectuals, Judge Posner declares that “[m]ost of this book is new,” aside from some very considerable portions of chapters 3, 6, 7, 8 and 10.