Tuesday, March 3, 2015

Calabresi's defense of Justice Scalia

Many readers have mentioned Prof. Steven Calabresi's rather impassioned and personal defense of Justice Scalia, for whom he clerked, against a recent critical biography by Bruce Murphy.  My colleague Justin Driver made some similar points in The New Republic, and it does seem the biography in question is unfair to Justice Scalia on several points.  But while Prof. Calabresi repeatedly chides Murphy for mean-spiritedness and pettiness, the latter charge seems to apply equally well to Calabersi's surprisingly score-settling rejoinder, in which various conservative politicans and legal officials (from Kenneth Starr to William Reynolds) are dismissed as mediocrities and lightweights (I'm happy to believe Prof. Calabresi is right, however).  But Prof. Calabresi's polemics against Judge Posner and Judge Wilkinson are curious and rather unseemly.  Particularly amusing is his diatribe against Richard Posner, which includes this observation:

The relationship between Posner and Scalia is affectionate on Scalia’s side but filled with envy, pettiness, and anger on Posner’s side, at least in my opinion. Posner is the author of more than forty books, countless law review articles, and countless judicial opinions. I think he feels that he was far more successful as a law professor and a founder of law and economics than Scalia was when he taught at the University of Chicago School of Law.

"Envy, pettiness and anger"?  I think anyone who knows Judge Posner will find this a rather implausible explanation.  Judge Posner has had scholarly polemics with many people, including some of his best friends, and I've never seen him to take any of it "personally."  But I'm quite puzzled by Prof. Calabresi's comment that, "I think [Posner] feels that he was far more successful as a law professor and a founder of law and economics than Scalia was when he taught at the University of Chicago Law School."  "I think"?  Isn't it obviously true?  Being on the Supreme Court has made Justice Scalia's views far more influential than he ever was as a legal scholar.  Prof. Calabresi, who worked in several Republican Administrations in  Washington and was involved with SCOTUS nominations, says: 

When Posner’s name did come up [in connection with SCOTUS vacancies), which was rarely, it was so that we could laugh about his immoral and politically fatal proposal to reform adoption law by legalizing the selling of babies. Posner was not respected by any of the last three Republican Administrations. He was the butt of a joke.

I suppose only in the insider world of the American far right could one think that reporting that "Posner was not respected by any of the last three Republican Administrations" counts against Judge Posner, rather than as (yet) another badge of merit. 

As I said, curious.

https://leiterlawschool.typepad.com/leiter/2015/03/calabresis-defense-of-justice-scalia.html

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