Jack Balkin says that Richard Posner is "of the very highest quality" and should be nominated for the American Supreme Court.
That reminds me of something I have written over ten years ago about the question of who is the greatest lawyer on the planet (in a book I published in 1992).
I started out with the observation that in Roman law, that question actually made a difference. In Roman law, judges were to count the voices of authors for and against any disputed opinion and decide with the majority, with Papinian's opinion deciding in the case of a tie. That made Papinian the greatest academic, and it had direct consequences for applying the law.
In contrast, there is no law that says "Richard Posner is of the very highest quality and his opinion is the tie-breaker in academic disputes".
And there is really no objective way to back up any such opinion. If someone doubts the ranking, you can't point to clear evidence. For tennis players you can easily build a ranking list. That can't be done with legal academics, since they don't play against each other. Who wins?
That doesn't mean I'd want to object to Balkin's opinion about Posner. And I agree with his point that it seems to be a good idea to have qualified people nominated for the Supreme Court.
I just think that it's very difficult to back this kind of opinion up with objective facts.
Posted by Karl-Friedrich Lenz at June 15, 2003 07:44 PM | TrackBack