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Posner departure sets stage for potential political fight over future of Seventh Circuit

By Jonathan Bilyk | Sep 12, 2017

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After decades of relative stability, the U.S. Seventh Circuit Court of Appeals in Chicago could soon undergo an extensive makeover, making the court potentially the next battleground in the fight for the future of the nation’s judiciary.

In the wake of the sudden retirement of Judge Richard Posner, the court now not only has four vacancies, but President Donald Trump and the U.S. Senate must replace a judge whose decisions and demeanor defined the circuit in many ways for more than 35 years.

“I think everyone expects the circuit will begin moving to the right, with the current president and the Senate, as every court is likely to move in a more Republican direction,” said Walter Olson, a senior fellow at the Cato Institute’s Center for Constitutional Studies and publisher of the blog, Overlawyered.

But the Seventh Circuit, he said, is a demonstration of why party affiliation and political leanings may not define how a court ultimately rules on all issues.

“On the Seventh Circuit, you had ‘Republican’ judges who made quite a few rulings Democrats liked, and you have ‘Democratic’ judges whose rulings are respected by Republicans. It’s what made this circuit one of the more respected courts in the country,” Olson said.

On Friday, Sept. 1, shortly before the onset of the Labor Day holiday weekend, Posner shocked the legal world by announcing he would abruptly retire from the bench. Posner, 78,  had been appointed to the Seventh Circuit by President Ronald Reagan in 1981 and in the ensuing three-and-a-half decades carved his name in legal history, ranking as one of the most important American jurists outside the U.S. Supreme Court.

Observers of the Seventh Circuit and beyond said they believe Posner’s legal mind, insight and wit will be all but impossible to replace.

“The Seventh Circuit is a pre-eminent federal court of appeal. And Judge Posner's unique role as one of the most important judges in history certainly accounts in part for the court's prestige and esteemed status,” said Evan Siegel, president of the Illinois-based Appellate Lawyers Association.

Siegel said he believed Posner’s greatest legacy will remain his oft cited “brilliant, accessible, enlightening and entertaining opinions, which always are a delight to read” combined with “his overarching insistence on a common-sense, pragmatic approach to appellate law.”

Olson said that approach often manifested in Posner’s take on class action and mass tort litigation, as he set the tone for the Supreme Court and other federal courts to rewrite the rules on calculating damages and “scrutinizing settlements” agreed to by companies seeking to simply end class action litigation, regardless of the merits of the case.

“Posner was the judge lawyers really didn’t want to run into if they had bad class action settlements to defend,” Olson said.

Olson said he believed Posner’s writings will remain influential long after his departure, as other judges use them to evaluate other cases.

“Things will never go back to how they were before Posner,” said Olson. “There will never be another Posner.”

But Posner’s forceful style and rulings also demonstrated a bent toward judicial activism, particularly toward the end of his time on the bench, said Carrie Severino, chief counsel and policy director for Judicial Crisis Network, a Washington, D.C.-based conservative action group.

She pointed particularly to Posner’s recent concurring opinion, siding with a majority of his fellow Seventh Circuit judges who found the meaning of “sex” in federal anti-discrimination law should be redefined to also include gays and lesbians. In his opinion, separate from the majority’s opinion, Posner said he believed the judges had the authority to make this determination regardless of how the elected Congress which enacted the law may have intended when they prohibited discrimination on the basis of sex.

“We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963-1965), carrying out their wishes,” Posner wrote in April. “We are not. We are taking advantage of what the last half century has taught.”

Severino said this statement represents “an activist approach toward judging that undermines the rule of law by arrogating to unelected judges the ability to rewrite law that our constitutional system accords only to the elected representatives of the people.”

“His recent candid acknowledgement that he was actually changing the law through his interpretation should shock anyone committed to our constitutional system of democracy and the rule of law,” she said.

While Posner’s prestige and influence may be largely irreplaceable, on a more practical level, his departure came on the heels of three other vacancies on the court.

Two vacancies on the court, including those formerly held by judges Terence Evans, of Wisconsin, and John Daniel Tinder, of Indiana, have been open for years, as Senate Republicans did not confirm former President Barack Obama’s nominees for those posts.

A third vacancy opened when Judge Ann Claire Williams, of Illinois, an appointee of former President Bill Clinton, assumed senior status on the court.

Traditionally, seats on federal appeals circuit courts have been assigned based on nominees’ association with states within the circuit. Senators from those states then are able to apply additional scrutiny to nominees for those seats, and potentially veto them, should the Senate Judiciary Committee honor tradition and not grant a hearing to a nominee for whom a home-state senator fails to return a positive “blue slip,” or opinion of approval.

Most recently, Democratic Sen. Al Franken, of Minnesota, refused to return a positive blue slip for Minnesota Supreme Court Justice David Stras, whom Trump nominated to the Eighth Circuit Court of Appeals, which presides from the cities of St. Louis and St. Paul, and includes federal district courts in Missouri, Minnesota, Iowa, Arkansas, Nebraska, North Dakota and South Dakota.

In the Seventh Circuit, Trump has nominated Notre Dame Law Professor Amy Coney Barrett to fill the Tinder seat in Indiana, and Milwaukee attorney Michael Brennan to replace the Evans seat, associated with Wisconsin.

Barrett has received a hearing at the Judiciary Committee, which included some controversial questioning from Franken and fellow Democratic Sen. Dianne Feinstein, of California, which appeared to imply Barrett’s Catholic religious beliefs could disqualify her from the federal bench.

In Wisconsin, however, Democratic Sen. Tammy Baldwin has expressed anger at the Brennan appointment, which she asserts violated Wisconsin’s tradition of using a bipartisan commission to vet and approve judicial nominees from the state. Brennan secured approval from only four of the six commission members, Baldwin said, one short of the five typically required to secure the commission’s endorsement. Trump nominated Brennan, regardless.

Baldwin has not indicated if she will follow Franken’s lead in seeking to block Brennan’s nomination by not returning a positive blue slip for the nominee.

Trump has not yet nominated anyone to fill the new Illinois vacancies on the Seventh Circuit.

Siegel said he hopes the president “will choose the most qualified individuals in the state for the circuit,” seeking to add to the “strengths of the current Seventh Circuit … the breadth of its talent and experience.”

“Its judges have served as state court judges and justices, federal district court judges, in state and federal government, in court administration, in the state legislature, in private practice, in the business world, and in academia,” Siegel said. “Those wide-ranging professional experiences and accomplishments make it a diverse yet cohesive, accomplished, and practical court.”

Five of the Seventh Circuit’s 11 remaining judges were appointed by President Reagan, with others appointed by presidents George H.W. Bush, Clinton, George W. Bush and Obama. Judge William Bauer, who is 91 years old, was appointed by former President Gerald Ford in 1974.

Olson declined to attempt to predict the direction Trump may take, or if Illinois’ two Democratic senators, Dick Durbin and Tammy Duckworth, would also take their cue from Franken and seek to block the president’s potential nominees to replace judges Posner and Williams on the Seventh Circuit.

“Senators, of course, are very influential in this process, but the allocation of seats on these circuit courts is not graven in stone,” Olson said. “There would be a lot to speculate on.”  

Severino said she hopes the White House and Senate use this opportunity to appoint what she called “brilliant, principled judges” to the circuit court, and remain willing to change rules and ignore longstanding traditions to overcome “partisan” roadblocks, if needed to fill the judicial vacancies.

“Democrats have been ratcheting up their partisan opposition to any and all presidential appointments, and will surely attempt to do the same with this vacancy, abusing Senate rules and procedures to create gridlock,” Severino said. “If they do, Senate Republicans will have no choice but to reform the system to eliminate opportunities for abuse.” 

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