Resolved: Dick Posner is the Donald Trump of Article III

I’ve been quite taken lately with Scott Adams’s use of his Moist Robot and Master Persuader ideas to make sense of Donald Trump. So I thought I would try on Adams’s filter for a while and see if it helped me understand matters closer to my areas of interest.

One of those is the judicial power.

Filter on, I looked around my digital world. And this is what came into focus:

Dick Posner is the Donald Trump of Article III.

Among life-tenured federal judges, Judge Posner is The Donald.

Think about it:

• Trump is a Master Wizard. So is Posner. (He even wears a robe!)
• Trump is a master of the “linguistic kill shot.” Posner wields a tomahawk for the legal equivalent. (He doesn't always make a kill, but he often garners a response.)
• Trump knows how to use media. So does Posner. (Don’t you think he knows exactly which lines in his high-profile opinions will be Slate-ified?)
• Trump is a Clown Genius. Posner is a Cat Genius.
• Trump thinks government officials should be more willing than conventional wisdom typically assumes we should be to trade off civil liberty for national security. Posner does too.
• Trump is a legend in his own mind. So is Posner. (Hint: Search the comment section for Ozymandias.)
• Trump can sense how the wind is blowing and set his sails accordingly. Same for Posner.

There’s more, of course, but let’s step back and consider concerns or counter-arguments.

Isn’t it a bit mean to compare Posner with Trump given their different day-job duties in law and politics? Maybe a bit. But not that much, and it’s a fair comparison. Trump and Posner are both highly effective people, very successful in their respective lines of work. Both would probably kind of like the comparison at some level.

Anyhow, “that’s mean” is more of a concern than a counter-argument. It does point to the question of motive, though. And here I must admit that I would like the Posner as Trump idea to stick.

Justice Scalia is my old boss, and I view him with affection. He can surely take care of himself. But some of Posner’s personal attacks on him offend me. The latest—accusing Scalia of pushing majoritarian theocracy—is particularly confounding given Posner’s own views on the Constitution and law.

Posner thinks "[t]he notion that the twenty-first century can be ruled by documents authored in the eighteenth and mid-nineteenth centuries is nonsense." And he also thinks that "whatever judges do within their jurisdiction is law." Put these two together in the mind of someone who decides constitutional cases, and you have a recipe for lawless constitutional law.

Next, stir in Posner’s views on the relationship between public opinion and constitutional law. ("I do think the change in public opinion was decisive for all the courts that ruled in favor of creating a constitutional right to same-sex marriage.") And throw in the idea of Liberty as a goddess. Who’s the majoritarian theocrat now?

(Lest you think this idea of Goddess Liberty far-fetched, consider that the West Wall frieze at the Supreme Court of the United States has an allegorical depiction of Divine Inspiration speaking to Justice. Some federal judges (though not Posner) occasionally act as if they take the allegory a bit too personally.)

Anyhow, Posner is surely of the view that turnabout is fair play. If this post were to bother him in any way that he would care about enough to do anything substantial, he would probably crush me. (If I ever finish this book I'm working on, maybe I'll be lucky enough for him to write a review trashing it. But I suspect a wry smile is more likely.) I do expect “Scalia is the Trump of Article III” to emerge from somewhere, though, if it hasn’t already. So it’s not like there’s no downside to peddling the comparison.

I make no pretense of dispassion in tagging Posner as Trump, but it’s not as if I am incapable of assessing Posner dispassionately. I’ve co-authored an article about him (and Judge Wilkinson) that assesses his thought somewhat favorably (or at least not unfavorably). And who can’t recognize Posner’s particular gifts? 

Lately, though, Posner’s been reminding me of someone else, and that’s Donald Trump. So I thought I’d share.

My claim that Posner Is The Trump Of Article III is obviously debatable. And it would be fun to see it debated. So hopefully this post gets picked up by a blog with a lively comment section. (Maybe someone will read it and think "How Appealing," and it then gets discovered by The Volokh Conspiracy (bat signal to Orin Kerr) or Josh Blackman?)