U.S. Supreme Court

Posner backs 19-member Supreme Court, comments on 'pompous lawyers'

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Judge Richard Posner

The U.S. Supreme Court may be too small, according to Judge Richard Posner.

A 19-member court would increase diversity and might have more quality justices, Posner said at a recent talk at the University of Chicago. The Chicago Tribune summarized Posner’s comments.

Posner, a federal judge on the Chicago-based 7th U.S. Circuit Court of Appeals, is the city’s “favorite smarty pants judge,” according to the Tribune.

Posner said the high court is “mediocre and highly politicized,” echoing past comments that the Supreme Court is “awful” and “a quasi-political body.”

Justices and other federal judges are appointed by politicians, with Senate confirmation, Posner pointed out. “Those politicians don’t care about quality beyond a minimum, a very low minimum,” he said.

Posner said politicians are more concerned with political leanings of potential judges, as well as the need to appoint “tokens,” such as women or Hispanics. “So you end up with mediocre courts that are highly politicized,” Posner said (at around 25 minutes, 30 seconds into this video, noted by How Appealing). “In the Supreme Court, we have extremely reactionary Supreme Court justices, appointed by Bush mainly.”

Posner didn’t specify George H.W. Bush or George W. Bush. George H.W. Bush appointed Clarence Thomas, while George W. Bush appointed Chief Justice John Roberts and Samuel Anthony Alito Jr.

One idea, voiced by George Washington University law professor Jonathan Turley, is a 19-member Supreme Court. Posner likes the idea.

“If the Supreme Court was much larger, they might say, ‘Well, OK, we have 19 justices, 12 of them are highly politicized, but we have these extra seven seats, so we’ll appoint some of the people just on basic quality,’ and that would make a big difference,” Posner said. In addition, a 19-member court “would inevitably have more diversity,” Posner said.

Posner had another suggestion for the judiciary in a recent piece for Slate. He said “there should be mandatory retirement for all judges at a fixed age, probably 80” and there is “no need for octogenarians” on the U.S. Supreme Court.

In a new Slate piece, Posner said he believes the quality of lawyers can be very important in a jury’s verdict.

“Very often the lawyers are totally mismatched in quality—by quality, I mean ability to sway a jury,” he wrote. “The quality difference need not be intellectual; often it is personality. Some lawyers are simply very good at coming across to a jury as nice—wouldn’t lie, wouldn’t exaggerate—and when such an attorney is up against a mean or pompous lawyer, the nice guy has a big advantage.”

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