Posner's Problem

Following in the footsteps of Jeb Bush, Seventh Circuit Court Judge Richard Posner, a "conservative" and Reagan appointee, has given liberals even more ammunition in making their case that the Republican Party of today would have thought Reagan too moderate of a candidate.  Here are snippets from an interview he recently gave to Nina Totenberg (her head nodding in approval at every response, I am sure) of NPR:

Posner expressed admiration for President Ronald Reagan and the economist Milton Friedman, two pillars of conservatism. But over the past 10 years, Posner said, "there's been a real deterioration in conservative thinking. And that has to lead people to re-examine and modify their thinking."

"I've become less conservative since the Republican Party started becoming goofy," he said.

And we can't forget this gem:

Posner, who was appointed to the appeals court by Reagan, speculated that the leaks about the deliberations over the national health care law — which are apparently designed to discredit Chief Justice John Roberts' opinion upholding the law — would backfire. "I think these right-wingers who are blasting Roberts are making a very serious mistake," he said.

"Because if you put [yourself] in his position ... what's he supposed to think? That he finds his allies to be a bunch of crackpots? Does that help the conservative movement? I mean, what would you do if you were Roberts? All the sudden you find out that the people you thought were your friends have turned against you, they despise you, they mistreat you, they leak to the press. What do you do? Do you become more conservative? Or do you say, 'What am I doing with this crowd of lunatics?' Right? Maybe you have to re-examine your position."

As Scott Johnson explains, this is all very tortured logic:

So the conservative critiques of Roberts’s opinion are the work of “crackpots.” Again, it would be nice to have some idea whom he is talking about, a coherent criticism of their critiques, or a defense of Roberts’s unusual opinion in substance. Instead Posner simply serves up childish name-calling.

Posner also assumes that the leaks from the Supreme Court came from conservatives at the Court. How does he know? Who are they? If Posner knows, he apparently isn’t saying.

There is nothing unusual or untoward about conservative activists and legal scholars criticizing a Supreme Court opinion, even one by a conservative justice. But it is unusual for a sitting federal appellate judge to criticize his superiors, as Ponser does Justice Scalia in this recent Slate column.

Just to add a few points:  It would be extremely shallow of a justice to change their jurisprudence simply because their allies disapprove of an opinion they authored (maybe this is what Posner does, who knows).  Plus, Chief Justice Roberts didn't think his allies were all "crackpots" to begin with, because much of their arguments were included in his majority opinion, especially regarding the Commerce Clause and the Necessary and Proper Clause.  And to imply, as Totenberg and Posner both do, that there is no valid criticism of Roberts' opinion is lunacy.  Finally, Professor Bainbridge makes the case that Posner never was a judicial conservative in the first place.

With friends like these....