BRIAN LAMB, HOST: Judge Richard A. Posner, when did you first think of yourself as a "public intellectual"?
RICHARD POSNER, AUTHOR, "PUBLIC INTELLECTUALS: A STUDY IN DECLINE": Oh, I -- when people started calling me that a few years ago.
POSNER: I hadn't even heard the term before.
LAMB: Where's it come from?
POSNER: Apparently, it was invented by a fellow named Russell Jacoby about 15 years ago. So it's quite recent.
LAMB: How do you define it?
POSNER: A person who's using the ideas from the, you know, cultural intellectual tradition -- could be philosophical, could be, you know, political, economic, sociological, literary, so on -- to communicate with the public about things that, you know, the ordinary people are interested in.
LAMB: Is there a name that automatically comes to mind when you think "public intellectual"?
POSNER: George Orwell would be the -- one of the great 20th century public intellectuals, Rachel Carson. Rachel Carson a scientist, but writing for the public about environmental problems that the public became interested in, as a result of her work. Betty Friedan is another. Edmund Wilson, great literary critic, who, you know, wrote about political matters, as well -- again, trying to reach a general audience with real ideas, not -- not pop culture.
LAMB: In your own life, when did you know that you were going to be an intellectual?
POSNER: Oh, I suppose I was a, you know, bookworm as a child. But I really think of intellectual not as a professional person, not as a lawyer or a judge, as such, but someone who is, you know, again, trying to reach out to the public about the ideas -- about the -- about the concerns of the public, as opposed to strictly professional concerns.
LAMB: How long have you been a judge?
POSNER: Twenty years.
LAMB: What's the court?
POSNER: The U.S. court of appeals for the 7th circuit in Chicago, covers three Midwestern states -- Illinois, Indiana and Wisconsin. So there are these regional courts of appeals, and they're between the federal district courts, the trial courts, and the U.S. Supreme Court.
LAMB: What were you doing right before that?
POSNER: I was a law professor at University of Chicago.
LAMB: How long did you do that?
POSNER: Twelve years.
LAMB: And before that?
POSNER: Oh, I had one teaching job before that at Stanford for a year. But before that, I was in Washington. I had a series of government jobs as a law clerk for the Supreme Court, and I worked for the Justice Department, Federal Trade Commission. I had a stint on one of President Lyndon Johnson's task forces on communications policy. So I spent six years in Washington before I went into teaching.
LAMB: You were a liberal Democrat for a while and then changed.
POSNER: Oh, well, when I was in -- when I was young, yeah, I would have considered myself a liberal, not necessarily a Democrat. But yeah, I did -- I did change over the years.
LAMB: What did "liberal" mean then?
POSNER: Oh, in the early '60s -- oh, it was very -- the first presidential election I was eligible to vote in, 1960, I voted for Kennedy with enthusiasm. So it was that kind of liberalism. I didn't -- I was not a party person, but I did consider myself a liberal in the early -- in the early '60s...
LAMB: When did you...
POSNER: ... and I gradually changed.
LAMB: ... shift?
POSNER: Well, I began shifting in the late '60s. I was -- I was very disturbed by the outburst of kind of student radicalism in the late '60s, and a kind of general sense of national disintegration. I didn't like the radicals, the unpatriotic left that became very conspicuous in the late '60s, early '70s. And also, when I started teaching, became interested in economics, I realized there was a lot more to capitalism than I had thought. So I moved gradually rightward. Not all the way, though, by any means.
LAMB: How did you get appointed to the court?
POSNER: Well, this was the -- this was the -- this was 1981. This was the outset of Reagan's first term, and the administration wanted to change the kind of ideological composition of the federal appellate courts. And they made a real effort to find conservative law professors, of whom there weren't a great many, and appoint them. So Bork was one. You know, Scalia was another. Ralph Winter on the 2nd circuit. And I was one of -- one of that group.
LAMB: Undergraduate at Yale, a Harvard Law grad, teacher from Stanford, teacher from Chicago, lawyer, appeals court judge -- do you live in another world, compared to the average person, when you're thinking through the world's …
POSNER: Oh, I -- I suppose. Yeah. I mean, one of the problems we -- the very educated people who are immersed in books and esoteric intellectual issues -- yeah, there's a disconnect between people like that and the -- you know, ordinary people. And I think it's dangerous for the, you know, intellectuals to get too remote from the experience of ordinary life.
LAMB: Do you do anything to try to stay in touch with ordinary life?
POSNER: No, I can't really say that I...
LAMB: You do...
POSNER: But I like, you know, movies and -- yeah, I -- I read the newspaper. I'm not completely detached from what's going on.
LAMB: Where did you meet your wife?
POSNER: In Cambridge, Massachusetts. I was a law student. She had just graduated from Radcliffe and had come back to Cambridge and was working. We happened to have apartments that were diagonally across from each other in the same building. That's how we met.
LAMB: Do you have -- what do you have in common?
POSNER: What do we have in common?
LAMB: Yeah, when it comes to the intellectual world.
POSNER: Well, she's a very intelligent person, and she -- she reads -- she reads a lot. And so we -- you know, we share intellectual interests.
LAMB: Got a couple kids. Where are they?
LAMB: They're not kids anymore.
POSNER: No, they're -- they're mid to late 30s. One is a -- works for Morgan Stanley in New York, securities analyst. And the other teaches law at the University of Chicago.
LAMB: However, I do understand from reading other articles about you, you do have a relationship with a cat.
POSNER: I do!
POSNER: I have a cat, to whom I'm devoted, but I'm not sure that -- I'm not sure that a cat is -- I don't -- I don't think a cat is a proper surrogate for the average American. So I don't think I can claim to be connected to my fellow Americans by my cat.
LAMB: But you did -- you did say, though, that the cat liked your wife better than she liked -- the cat likes you.
POSNER: Yes. It's a characteristic of cats to pick one person to favor, yeah.
LAMB: Now, is -- it's unusual for you to be in a position of answering questions in the last 20 years.
POSNER: That's true. As a judge, yeah, we...
LAMB: Are you aware when you're...
POSNER: Sometimes the lawyers get -- sometimes we upset the lawyers, and they start asking us questions. That's somewhat impertinent, but I'm happy to answer them.
LAMB: You know, everybody always wants to know about you, how do you do it? How do you sit on that bench and then write -- what, you've written over 30 books.
POSNER: Yes. Well, I'm -- it's -- it's -- you could say it's obsessive-compulsive behavior. I like to write, read, write. That's basically what I do. And also, the more you do, the easier it becomes. That's true of everything.
LAMB: Now, in what timeframe? Because I know that you got a lot of publicity on this book because of your chart...
LAMB: ... your list of public intellectuals.
LAMB: What timeframe did you write this book?
POSNER: I think, basically, a year, although I incorporated into it some materials from earlier -- earlier writings. I think about -- about a year.
LAMB: But you said...
POSNER: I mean, obviously, part-time, not ….
LAMB: By the way, what time of day do you -- can you spend writing? How do you break up your schedule?
POSNER: Oh, I work pretty much seven days and seven nights a week. I mean, not all together, obviously. There's some social engagements or travel or something. But you know, most of the time. I do try to -- I do try to work -- I actually try to work every day of the year. Even if I can only do a few hours' work a day, it's -- you know, you can do a lot in a few hours. So if you're careful about budgeting your time and you apply yourself, you can -- you can do a lot.
And I do have assistants. I have academic research assistance at the University of Chicago. I have law clerks to help me with research, legal research on opinions.
LAMB: So the subtitle, "A Study of Decline," the public intellectual in decline.
LAMB: Give us a reason why or give us an example.
POSNER: Oh, I think -- well, there's always -- there's always a great -- the pitfall in trying to -- trying to identify sort of a quality trend is that you tend you consider the best of the past with the average of the present because you've forgotten the worst of the past. That's -- that's disappeared. So that's a danger.
But as you look back at the really influential public intellectuals of history -- you know, starting with Socrates and Seneca and Cicero and Voltaire and John Stewart Mill, and then coming into the -- coming into the 20th century, with Orwell and -- I mentioned Orwell. I mentioned Edmund Wilson -- John Maynard Keynes, and coming, you know, right into the '50s and '60s, with people like Betty Friedan and Rachel Carson.
But now, as we look around, although there are a lot of very intelligent people who are public intellectuals, you know, writing for the public, it's hard to see them as people who are going to have the kind of influence. Now, I think there are exceptions. Henry Kissinger's an exception. Milton Friedman's an exception. But these are now elderly people.
And I think the reason -- what has happened is that as universities have grown and as the discriminatory barriers to university employment have fallen, kind of more and more brilliant intellectuals find themselves sucked into the safe life of the university professor, with tenure and good salaries, and so on, not this hand-to-mouth existence that so many public intellectuals had, you know, writing for -- actually trying to live on a pittance from -- you know, for writing magazine articles.
So -- so we're -- and -- and -- but the people -- but the kind of Faustian pact … professor is you become a specialist. You live in a kind of cloistered world. And your ability to see the problems of ordinary people, discuss those problems, have a generalist's breadth -- you just kind of -- is withered by your -- by your career path.
LAMB: What do you think of tenure?
POSNER: I think tenure is probably, on balance, a bad idea. It's got a -- it has an unfortunate kind of self-selection. It means -- it selects for people who really are not risk takers, and that imparts a kind of atmosphere at a university, a kind of timidity and kind of intellectual conservatism. So I mean, the traditional argument for tenure was that it was necessary to protect people who had unpopular views.
But you know, what's odd about universities is very strong atmosphere of conformity in universities. You know, goes under the name now of "political correctness," but there's always been tremendous self-censorship in the university community and a lot of, you know, imitativeness and -- so I'm not sure tenure -- to some extent, it protects unpopular views, but -- and also, you know, any kind of tenure -- true of judges -- it's going to -- it's just going to manufacture a lot of dead wood because people who can't be fired just don't have -- are just not going to be on their toes to the same extent as people whose jobs are insecure.
LAMB: How much do you teach these days?
POSNER: I -- I don't teach very much. I teach -- we have a quarter system in Chicago. I teach a course in one quarter and a seminar in another quarter. So it's -- it's about a third of a standard load.
LAMB: With 20 years on the bench and roughly 20 years in the classroom, which -- which one is the best? Where's the -- where do you enjoy -- which one do you enjoy the most?
POSNER: Oh, if I had to choose -- well, I wouldn't like to -- I -- I think of the -- I think of the judgeship certainly as my primary job. And I enjoy it very much. And yeah, I would prefer to be a judge than a professor, but that's a -- that's a personal choice, not everybody's choice.
LAMB: As you know, most judges don't write publicly.
LAMB: Speak publicly.
POSNER: ... most don't. Well, a fair number do, actually, especially the ones who were professors before they became judges.
LAMB: Do you have any restrictions on what you can write?
POSNER: Yeah. We're not allowed to make public comments, which would include in writing, on pending lawsuits or impending lawsuits, you know, where you know a lawsuit is about to be filed in a matter. So that's an inhibition.
LAMB: And what was your role in the Microsoft case?
POSNER: I was asked by the judge presiding over the case to mediate -- that is, to try to bring the two sides together to settle the case.
LAMB: How much of your time did you have to spend on that?
POSNER: Well, the mediation lasted for three-and-a-half months, and I did spend a great deal of time on that …
LAMB: So when you're doing that, do you -- you don't sit on the 7th circuit?
POSNER: No, I was still sitting. I -- I was sitting, but we don't -- the appellate judges, federal appellate judges, don't actually sit, actually hear cases that many days of the year. We hear -- we hear six cases a day, but we only sit about 30 days a year. And that's 180 cases, and there are also cases that aren't orally argued. So it's not a trivial workload, but in terms of the days you actually have to be present and sitting, they're relatively few. So I -- I -- you know, I can take a few months and be concentrating heavily on other -- well, on Microsoft mediation, while still sitting a few days during that period.
LAMB: And the 7th circuit, based in Chicago, has how many judges on it?
POSNER: Eleven sort of judges in regular, active service, as it's called, and several others who are kind of semi-retired but sit part-time.
LAMB: You say in your book that John Stewart Mill was probably, what, the most influential...
POSNER: Certainly, one of the most...
LAMB: ... public -- public intellectual...
POSNER: ... influential...
LAMB: ... in the last two centuries?
POSNER: Certainly, one of the most, yes. Karl Marx more influential for the bad. But Mill, of the good guys, yes, one of the most influential.
LAMB: What was good about him?
POSNER: About Mill? Well, as a public intellectual, his -- his most important work is, you know, a short book, "On Liberty," in which he advocates a form of liberalism which I consider very -- I, by modern standards, describe myself as a conservative, but what Mill said, basically, was that the only business of government is to protect people in the, you know, kind of peaceful enjoyment of their -- you know, whatever they want to do. So you know, his -- so he thought people should be allowed to do whatever they wanted to do, as long as they weren't hurting other people. So that's liberalism in both the economic and the personal area. I guess now we'd think of that -- of this as libertarianism -- includes free speech but also, you know, freedom to engage in business activities without the heavy hand of government.
So I think that's a great program for our society, for any society. But -- and it has been very influential.
LAMB: How did you reach the conclusion that he was that important?
POSNER: Oh, that's just a -- that's just a guess. There's no way of measuring historical influence, really, I don't think.
LAMB: You write a lot about -- well, a lot of people. I mean, you write a lot about Robert Putnam and "Bowling Alone." And page 319, you say, "The virtues that Putnam stresses are real." What's he talking about? What virtues?
POSNER: Oh, he -- he's talking about the need to have some sense of communities, the ability to engage in some national projects. You can't have everybody so individualistic that there's no cooperative activity with other people. I think that's his sound point.
LAMB: You say that a number of us who grew up in the '50s "do not regret the displacement of many of those virtues and of the culture they formed by the freer, more individualistic, faster-paced, richer, more varied and more exciting, if also more"...
LAMB: ... "vertiginous society of the present."
POSNER: Right. Yeah, well, the -- I talk about Putnam in a chapter which is basically about nostalgia. And it's people -- you know, middle-aged and elderly people tend to look back, and they're very conscious of anything that's been lost since they were young. They're less conscious of the gains, often because it's difficult for older people to adapt to new -- new things.
So he looks back at the '40s and '50s as -- where there was more -- there was more conformity. There was more homogeneity in the society. And so those -- yeah, they were good. I remember from the -- you know, I grew up in the '50s, and you didn't have to lock your car ever. People never bothered to lock their cars. They often didn't bother to lock their houses. So yeah, there were nice things about the '50s. Country was less congested, and so on.
But there have been enormous gains since, which the nostalgists tend to overlook. And I prefer our modern, you know, more heterogenous, more individualistic society, although I recognize some loss.
LAMB: Take the book, "Bowling Alone." What impact, in your opinion, did that have on any part of our society? And is it good or bad that books like that are written, books like yours are written? Who's listening?
POSNER: I don't think the social -- the impact on society, as a whole, of these books is -- is substantial. "Bowling Alone" certainly received a lot of attention, is well -- has been well received by academics, by sociologists and Palestinian scientists. It sounds a chord. You know, there's -- of nostalgia, of concern about the country, where it's going, and so on. But as far as actual impact, I -- I don't -- I -- I doubt that it's significant.
LAMB: So why do public intellectuals do what they do? What's -- what do you think their goal is?
POSNER: Oh, I think -- well, I think -- I think the main thing, probably, is that people very much like to have -- like to be famous, like to have their name in print, like to be on television, like to be celebrities, like people to say, "Oh, I saw you on television. I read your op-ed piece." I think also there's a sense of power in, you know, telling the country what to do. And it's true, no one may be listening, but still, you have the sense -- you don't -- it's hard to realize that one is often speaking into the -- into the void.
Now, for some of these people, there's -- there's a significant financial pay-off. You know, it's like a tournament. There are very few winners, but there's a few public intellectuals who have made very lucrative speaking or book or best-seller book careers out of public intellectual ….
LAMB: Why do people go and listen?
POSNER: Why do they listen? I think one of the reasons they listen is that these people are -- some of them are sort of genuine celebrities. You recognize them. You know, people like Henry Kissinger. Some of them -- I'll mention Kissinger again -- are actually extremely intelligent people and they're worth listening to. And others are glib and -- and funny and shocking and -- so there's an entertainment value, even if you don't take seriously what -- what you're watching or hearing.
But in addition to that -- and I think -- I think a bad quality of public intellectual activity is that a lot of it is sort of building solidarity with a -- with a political position. That is, most people are reading or watching or hearing public intellectuals who are articulating their views. So if you see that some, you know, celebrated and -- and credentialed and highly articulate person is stating your views, you're reinforced in those views. And so I think there's sometimes they polarization.
The left -- the lefties listen to the left -- wing intellectuals and are -- and -- you know, full of indignation, and so on. And the right-wing people similarly. And so -- pulling apart. I don't think this is a serious national problem, but I think it is a -- a negative consequence of having all this political intellect -- public intellectual expression on the airwaves and in the papers.
LAMB: You once compared, in your own life, the difference between having a social occasion and a party and talking to people, friends and all, versus watching television. I must say, I was surprised to learn that you think you can learn more from television than you can from getting around a bunch of people at a dinner party. Why?
POSNER: Because -- because you -- you socialize with the people with whom you're comfortable. And you're comfortable with the people who agree with you. And so it's a kind of echo chamber effect, with, actually, a difference between the intellectual -- between the television and magazines. Magazines tend to be ideologically monolithic. There are liberal and there are conservative magazines. And usually, the person who reads the liberal magazine doesn't read the conservative, and vice versa. Television, the talk shows, make some effort at balance, to having opposed views. So if you watch television, you're going to actually -- might actually see a debate, and you might -- and your views might be changed. You're not going to have that with a dinner party.
LAMB: In that regard, there's a footnote on page 192 that I wanted you to explain. It's footnote 28, and you say, "I omit `The Atlantic Monthly,' as it seems to me to have, remarkably for a public intellectual venue, no political leaning." How did you get to that point?
POSNER: I -- I -- I tried to look at a number of recent issues of a number of magazines, and the recent issues of "The Atlantic Monthly" that I read didn't seem to me to have a particular political character. They were all over the place.
LAMB: What's your favorite magazine?
POSNER: Oh, I wouldn't -- I wouldn't -- I wouldn't make that -- I wouldn't make that choice. The ones I read regularly would be "The Times Literary Supplement," "New York Review of Books," "New Republic." I do read "The Atlantic Monthly." I actually am writing a -- I've started writing a bimonthly column for "The Atlantic Monthly." That hasn't nothing -- that footnote has nothing to do with that. That was written long before I ever got -- ever had any dealings with "The Atlantic Monthly."
What else do I...
LAMB: By the way, who owns "The Atlantic Monthly" now?
POSNER: Who owns it?
POSNER: I have no idea.
LAMB: So -- and Michael Kelly's the editor.
POSNER: Michael Kelly -- see, Michael Kelly -- I -- it was Michael Kelly who asked me to write this column, and I knew not -- I have never met him, but I knew him because he had been the editor of "The New Republic," and I thought he had done an excellent job. And I understood that he had been fired because his column was too critical of -- of Gore. So I was -- but I had nothing for or against Gore, but I enjoyed his column. It was very amusing. And so I've always had a high opinion of him.
LAMB: But I think you point out that Marty Peretz owns the -- or did own "The New Republic" and...
LAMB: ... who was a friend and a teacher of Al Gore's...
LAMB: ... at Harvard.
LAMB: Well, the -- what got you the most publicity in this book, or what got you publicity in this book was this whole chart that you...
LAMB: ... or this whole list. Tell us about the list.
POSNER: Yeah, I'm -- I'm embarrassed by the attention it's gotten because -- maybe this shows my -- I'm just out of touch with the real world. But I wanted to do some statistical work on public intellectuals because that hasn't been done before, and I was interested in things like -- you know, what are the characteristics of successful public intellectuals, in terms of age, ethnicity, field they've come from, whether they're dead or alive, whether they're foreign or American?
So how do you -- how do you study that? And what I tried to do is to -- or what I did was compile a list, necessarily incomplete and kind of catch-as-catch-can of public intellectuals. And I got up to over 500. And at that point, I thought, well, this is -- this is not either a random or a complete -- neither a random sample nor a complete universe of public intellectuals, so I should make some cut. And what I did was simply do a -- have a computer count made of these 500-odd public intellectuals and compute who -- well, basically, who got the most mentions in the media, who received the most scholarly citations.
POSNER: Well, this is neither a random sample nor a complete universe of public intellectuals, so I should make some cut.
And what I did was simply have a computer count made of these 500-odd publican intellectuals, and compute basically who got the most mentions in the media, who received the most scholarly citations.
LAMB: I've got the list here of the most mentions in the media.
It starts with Henry Kissinger. Number two would be Daniel Patrick Moynahan, George Will, Larry Summers, Bill Bennet, Robert Rice, Sidney Blumenthal.
The Sidney Blumenthal was interesting to me because from 1995 to 2000, those five years that you judged all of this, he was most of that time in the White House, where he never said anything.
POSNER: Yes. One of the -- you see, when you're trying to do statistical research, there's a tradeoff between sort of objectivity and nuance or precision.
I mean, a computer that counts people is complete uncritical -- that counts references to people. It doesn't know whether the reference is to the person's public intellectual work or to something else.
On the other hand, if the scholar starts throwing people out of his list, saying, well, that's is not really what he's being cited for, then you have kind of the accusation that you've cooked your data.
So the problem with Sidney Blumenthal is that undoubtedly, most of the references to him are not to his public intellectual role, but to his role in the Lewinsky business.
And, similarly, with Henry Kissinger, some of the references to Kissinger are to his service as secretary of state rather than to his public intellectual work.
Now, these are both, I think, serious public intellectuals. Kissinger, with his academic background and his long list of books -- I mean, when you see Kissinger on television discussing a current problem, invariably he will bring into the problem the historical and, you know, philosophical perspective, that marks him as a real intellectual.
And Sidney Blumenthal -- his actual role in the White House was supposed to be as a kind of bridge between Blair and Clinton to try to forge, you know, a concept of the third way, which would be trying to somehow split the difference between liberals and conservatives.
And, you know, public intellectuals in government, that's an old story. You know, Seneca was to Nero basically what Galstein (ph) and Blumenthal were to Clinton. That is, they're the intellectuals who have the ear of the man in power.
But as you say, and as I acknowledge, much of the publicity Blumenthal received in recent years was completely unrelated to his intellectual activities.
LAMB: Other things that you seem to have found, and you explain them, and I'm not sure I even understand this table. It's public intellectual summary statistics, and it appears that for the size of the population, the blacks, the percentage area, is 4.8 percent, whatever that means. And then in right versus left-leaning, left-leaning is 66 percent. Right-leaning is 25 percent. And then Jews and non-Jews at 43 percent of whatever you found are Jewish, which means that there is very little thought being pronounced by blacks, and an overwhelming amount, on a percentage basis, pronounced by Jews. Explain that?
POSNER: Yes. Yes.
LAMB: And what is this poll -- I mean this chart, so that I don't...
POSNER: What I did -- one of the reasons why I drew a sample of 100 from my larger sample is that with 100, numbers and percentages are the same. Right? You have five black people, that's 5 percent.
In the larger -- I also report, however, statistics in the larger sample. That's where you get the 4.8 percent.
So what this means is that public intellectuals are not representative of the population ethnically. And this is not surprising, because public intellectuals tend to be highly educated people, and we know that Jews have been very much drawn to education and they're very prominent in universities and the media and so-on. And blacks have lagged in the intellectual professions. So that's not a surprising statistic.
I think a more interesting statistic is the other that you mentioned, about -- and I think this is pretty solid, that about 2/3 of the public intellectuals are on the left, and about 1/3 or a little less are on the right. And I think that's -- on the right -- what one senses, in terms of the magazine and newspaper breakdown, and the very -- and it's an interesting, of course, disparity or discrepancy between public intellectual ideology and the national ideology.
Nationally, you know, it's split quite down the middle. But the public intellectual has a left tilt, as the media do.
LAMB: Are public intellectuals -- do they ask to be public intellectuals? Does somebody have to say "I'm going to be one," rather than a private intellectual?
POSNER: I think so. No one is forced to. Some people court it avidly, some people are courted.
There is, in these magazines the newspapers and television radio shows, they have a tremendous demand for commentary, reflecting the demand of people.
You know, newspapers and I think all of the media have become less focused on just reporting the facts and more on commentary and interpretation. I think maybe as the world becomes more complicated, people want interpretation.
So there's this enormous market out there. So many people who become public intellectuals were approached by the media, rather than making it their career choice. But when they're approached, they find it attractive, and they're off and running.
LAMB: You also have a list of where people come from who write and talk, and the big areas are specialists in literature and in history and in philosophy. This all may make sense. And in other categories, one of the largest on the list is journalism and then I think the single largest is law.
Are we served better by having a lot of our public intellectuals come from the law area?
POSNER: That may reflect my own bias, or my own knowledge. That is, there's no place you can go for a list of public intellectuals. You have to make it up yourself. And I think, given my background, I would tend to have more lawyers in the list.
But, you know, obviously, people like Alan Derschowitz are major public intellectuals on the law side, and I think what it reflects -- not that lawyers have any kind of monopoly of wisdom or anything like that, but there are so many legal controversies in the United States, law is so pervasive and so many political and economic controversies become recast as legal, that I think it's just inevitable there'd be a big market for lawyer commentary.
LAMB: Right before this book, you did two books that were fairly public. One of them was on the impeachment of Bill Clinton and the other one was on the 2000 election.
LAMB: What was your premise, or your findings, on the impeachment in the impeachment book?
POSNER: It's hard to reduce it to a single finding. I was more interested in trying to present what I hoped would be a balanced analysis of a legally and politically very complex question, which I thought had been ill-served by the media and by the public intellectuals, as one of the subordinate things.
My conclusion was that there was very little doubt that President Clinton had committed serious offenses of the sort that could have gotten him prosecuted. But on the other hand, I didn't think it was possible to really make a judgment on impeachability, because there just are not sufficient guideposts in the constitution or in political theory, so I actually thought that it -- I thought his misconduct was serious, and I thought it probably was a good idea that it got a very public airing, but I don't think it would have been good for the Senate to convict him and remove him from office.
So, I was pretty content with the result.
LAMB: You had some strong feelings in the middle of that, or at least in your book, about public intellectuals, academics in particular, signing ads.
POSNER: Yes. See, the problem is, if something really new hits, whether it's a presidential impeachment and we've only had one before, although Nixon was almost impeached. But, you know, impeachment is a very rare event, so it was a big surprise.
And then with the election deadlock, you know, we have actually had election deadlock in the past, but it was in 1876, so that's very new. And then the terror and the Afghanistan business. That's very new.
When something very new comes up, the journalists are at a loss and they cast around for experts who can fill what becomes an enormous public demand for informed commentary. The problem is, there are often very few experts.
There are a lot of glib people who will pose as experts and have credentials and so on, but the result is you get really bad public intellectual commentary.
And I thought in the impeachment case, it was really very bad. And it's not just very bad in terms of uninformed. But you mention the full page ads. There are some genres of formats of public intellectual activity which are worse than the op ed piece of the television news appearance, and that is signing a full page ad, because the people who sign it are often people who, they may be in the same field as the person who wrote the ad, but they don't know anything about it.
So when 400 historians sign a public advertisement, you know, full-page advertisement or petition, which says there is no historical basis for considering President Clinton's conduct impeachable, well, probably 398 of them don't know anything about the history of impeachment.
You know, history is a very specialized field. Being a historian doesn't mean you actually know history. It may mean you know the history of, you know, Prussia in the 18th century, but you may not know anything about impeachment. So this stuff is kind of bunk, really.
Another example was, I think something like 25 Nobel scientists signed a petition to President Clinton, saying that defense against missile attacks was technically infeasible.
Now, most of these people were chemist, biologists. They know nothing more about the feasibility of anti-missile defense than a lawyer does, and even the physicists who signed it -- you know, the issue with an anti-missile defense, basically, as I understand it, is ability to discriminate between actual warheads on an incoming missile and decoys.
That's a very technical, esoteric branch of physics. Most people, physicists, are not competent about that.
So this is the worst kind of, this kind of herd behavior of intellectuals, signing up with their friends on positions they don't know anything about.
LAMB: Your second book that I mentioned was about the election. What was your take?
POSNER: Right. That was very similar, because election law is extremely esoteric, and even election technology -- the punch cards and the chad buildup and all that stuff -- that's very esoteric.
So immediately -- and this is something that boils up -- this was even faster unfolding than the impeachment.
Within days of the election, November 7th, November 8th -- within 48 hours there was a full page in "The New York Times" urging that the election be rerun in Palm Beach County because of the butterfly ballot. I mean, crazy stuff. You can't just rerun an election. It's probably unconstitutional, infeasible. You have to print up new ballots. I mean, it's just ridiculous.
So, this boiled up so quickly that -- and there were so few people knowledgeable about not just election law, but about how the constitution and federal law resolve presidential election deadlock, that the public intellectual commentary was singularly uninformed.
LAMB: So, in the end, though, how did you come down? Did the Supreme Court do the right thing?
POSNER: I think what the Supreme Court did was defensible. I think you couldn't call it right or wrong. I think defensible. But that they handled it very poorly, in terms of the grounds they adopted, the things -- their rhetoric. They really shot themselves in the foot. I don't wish to be critical, though, because I don't think I would have done any better.
I think the problem was, for the court, as with the public intellectuals, they were confronted with something very new, very unexpected, and they had very little time to deal with it.
If you have months to think about things, you can think about how it should be done. But if you have to react immediately -- courts aren't really equipped -- often you have to make a tentative ruling quickly, but courts generally not oriented toward very rapid reactions to unfolding events. It's more of a leisure, reflective activity that they try to engage in.
So they were caught very much by surprise, I think, especially with the lower courts involved, the Florida Supreme Court. I don't think they should be criticized. It's just, you know, if something new hits people, they're usually going to make a botch of it. Those are our limitations.
LAMB: Let me ask you about your relationship with the Supreme Court.
One, you worked for William Brennan as a clerk. For how long?
POSNER: A year, standard.
LAMB: And since you've been on the appeals court, I've seen many stories where you were at some point or another considered to go on the Supreme Court?
POSNER: There were newspaper articles of that sort.
LAMB: Did you get any closer than that?
POSNER: No. No one in authority every approached me and asked if I was interested or said I was under consideration. So as far as I know, it was just kind of rumor.
LAMB: But you have to write opinions all the time that get bumped to the Supreme Court and then they make a decision of their own, whether they think you were right.
POSNER: Yes, except I wouldn't say all the time, because the Supreme Court is kind of like the brontosaurus. The brontosaurus had a little tiny head and then a huge body.
So the Supreme Court is kind of frozen, this tiny head. And the body, consisting of all the decisions that are appealable to the Supreme Court, keep swelling. So the Supreme Court takes to decide about I think it's only taking about 80 cases a year. But the Federal Courts of Appeals, I think, are grinding out about 10,000 decisions a year, and the state supreme courts at least as many.
So, actually, to have one of your decisions by the Supreme Court is a little like being struck by lightening. Every once and awhile it happens. But I've written almost 2,000 opinions, and I doubt that more than 10 or 12 have actually gone to the Supreme Court.
LAMB: The reason I bring it up is, I wonder if you ever worried that criticizing the Supreme Court in the book would ever hurt you in the future, when they're looking at one of your decisions.
POSNER: No. No. I don't think they're petty. And for one thing, even if -- I don't think they're petty. I think they understand that you can't be a Supreme Court justice and escape professional criticism. That just comes with the job.
But in edition to that, even if particular justices harbor particular animosity to lower court judges, the stakes in their decisions are too great for them to allow that to influence their work.
And my feeling is -- I don't know all of the Supreme Court judges, but I know most of them, and they're very gracious in their dealings with the other justice. And, no, I don't...
LAMB: Let me go back to your last list, because you've observed education all your life, and looked at the distance between the blacks and their position as public intellectuals, and the Jews. And you go to -- the Jewish people have a real interest in education. How do you flip this thing over in the future? Is it possible to change, and to get people who have not been interested in education interested? And how would you go about it?
POSNER: Well, it's very difficult, because, you know, cultural traits are often more difficult to change than biological traits. You can have plastic surgery or something, but when you have a deep-rooted...
For example, the Jews, going back to biblical times, there's always been this tremendous significance attached to the written word, to the Bible and then to its elaboration in the Talmud, and partly because of discrimination against Jews, they sort of channeled into it.
But whatever there is, there is this heavy emphasis in Jewish culture on education and intellectual activity, and on the other hand, a number of black professionals have made this point, like Orlando Patterson, for example.
There is a strong anti-intellectual streak in the black culture in the United States, where kids are ridiculed by others kids for any interest in education. That's considered, you know, whitey stuff.
And so -- and there are people like Patterson, who recognize this as a problem, and want to change it. How one does that, I don't know. It's not my area of expertise.
LAMB: What was your own personal atmosphere when you were growing up? Where were you born?
POSNER: New York.
POSNER: Yes, Manhattan.
LAMB: Where were you educated, in New York?
POSNER: Well, private schools. Walden, Columbia Grammar, Ethical Culture. Then my family moved to Scarsdale when I was 9 and I went to public school in...
LAMB: What were your parents like?
POSNER: Oh, they were -- my father was a lawyer and a businessman. My mother taught English in New York public high schools. They were quite left-wing and Jewish people, and they had gone to the public college in New York.
They were immigrants, but they came over as children, so they were fully assimilated.
POSNER: My father was born in Romania, my mother in Austria.
LAMB: Was there a difference in, if you're from Austria or from Romania, in the family, was there -- did it matter where they were from?
POSNER: Oh, yes. Because German, including Austrian, Jews, look down on Eastern European Jews. So my mother, although they both grew up in great poverty on the Lower Eastside -- my mother's family looked down on my father's family, partly because of the difference in the country of origin. Partly because although they were both very poor families, my mother's family was a little better off.
LAMB: Do you remember the first time that you -- or do you remember the atmosphere in which you started to want to learn?
POSNER: Oh, yes. Well, it was particularly -- my mother starting reading Shakespeare to me when I was an infant. And "The Odyssey" -- I know she -- I remember the copy of "The Odyssey" we had in which she had to remove the picture of the Cyclops, because it frightened me. So I must have been -- in fact, I remember being taken to the Laurence Olivier "Henry V," and that movie was issued in 1942, when I was three.
So there was a lot of this kind of -- I wouldn't call it forced feeding, but my mother certainly made a big effort to introduce me to culture from the earliest possible age.
And the atmosphere in our home was very much that -- again, very different emphasis. They didn't care about my doing sports or anything like that. They wanted me to read and get good grades. They wanted me to have a social life, and be a normal kid, but the focus was on being a good student, being academically successful, going to the best possible college, having a career that would have professional dignity, not just be money-grubbing.
LAMB: In your book, you say that Shakespeare and Henry James and T.S. Eliot and Charles Dickens were anti-Semitic. True?
POSNER: Yes, although when you put it that baldly, it makes it sound like a criticism, which was not my intention. It was just -- just the culture.
But also, you do make a distinction between, I mean, before 1950 or so, casual anti-Semitism or negative remarks about Jews was just part of Western culture, and they were pervasive, and they didn't reflect, I think, any particular hostility. It was just the way people talked.
There have always been serious anti-Semites, that is people with Jews on the brain. And in the cultural tradition, someone like Ezra Pound would be an example. There was a real preoccupation for them. He was a serious anti-Semite.
But someone like Eliot or Shakespeare or Dickens or James, where you'll just notice anti-Semitic passages in their works -- I don't consider that to be serious. I don't remember the context in which I mention that.
LAMB: You say, though, that most public intellectuals are -- when they talk about the present, they're not very happy.
What about the future? And what about your look into the future? Are you positive? Negative? I mean, after we see the decline of public intellectuals, where are we going with all of this?
POSNER: I don't know what the future holds. I think the most powerful indictment that can be made against public intellectuals is precisely their efforts to predict the future. That's where you see the most absurd mistakes. I don't want to fall into that swamp by making predictions.
In fact, I think there is such enormous complexity in the modern world, that it's really impossible to make responsible predictions. I don't see any reason to be pessimistic. But on the other hand, there is such pervasive uncertainty.
We're continuously being surprised. And that means that we don't have a very good sense of what the future holds.
LAMB: Harvard Press published this book. Do they publish all of your books?
POSNER: No. Most of them. Some have been published by other academic presses, and some -- I have a couple of text books that have published by...
LAMB: But a book like "The Public Intellectuals," how many would they print the first run on this?
POSNER: I don't know. I think probably 10,000 would be the upper limit of a first run. These are not big sellers.
LAMB: What's your best seller?
POSNER: Well, I have a textbook called "Economic Analysis of Law," which has been in print since 1973, but in successive editions. It's not really the same book. But over a period of almost 30 years it's sold a lot of books.
In terms of one, I think my book on Clinton's impeachment sold, I think, more than 25,000 copies in hardback. Now it's in paperback. This is very far from bestseller, though.
LAMB: Our guest has been a judge at the U.S. Court of Appeals in Chicago, Seventh Circuit. His book is "Public Intellectuals: A Study of Decline" -- Richard Posner. Thank you very much for joining us.
POSNER: Thank you. It's been my pleasure.
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