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« Back to Courting Controversy main page   Transcript for: Courting ControversyBen Wattenberg: Hello, Iım Ben Wattenberg. Richard Posner is a Judge of the U.S. Court of Appeals, the court second only to the Supreme Court. In his spare time, he is one of Americaıs most eclectic and provocative thinkers. He has written over thirty books and three hundred articles on topics ranging from legal theory to literature, from economics to AIDS. He teaches at the University of Chicago; he is one of the founders of the academic movement known as Law and Economics. His latest book, Public Intellectuals, a Study of Decline, slammed the work of many of his fellow experts who slammed right back about Judge Posner, his book and his ideas. The topic before the house: Richard Posner, courting controversy. This week on Think Tank.(musical interlude) Ben Wattenberg: Your Honor, Judge Posner, Dick.Dick the party of the first part, welcome to Think Tank. Richard Posner: Thank you. Ben Wattenberg: Tell us first a little bit about yourself, where you grew up, where you went to school. Richard Posner: Grew up in New York, Manhattan, then I went to public high school in Scarsdale, then college at Yale and Harvard Law School and worked in the government for six years. Ben: For a liberal Supreme Court justice, right? Richard Posner: Yes, for Brennan. Then I went into law teaching, first at Stanford then at the University of Chicago. And Iıve been a Judge in my court for the last twenty years. Ben Wattenberg: Your book gets sort of personal in a lot of ways in terms of the reviews and everything so let me quote what you said about yourself. You said, ³I have exactly the same personality as my cat. I am cold, furtive, callous, snobbish, selfish and playful but with a streak of cruelty.² Is that accurate about your cat and you? Richard Posner: Well I think itıs certainly accurate about the cat. It was a little bit tongue-in-cheek about myself but Iıll stand by it. I did say it (laugh) Ben Wattenberg: You are known, as we said in the introduction, for your approach to legal studies, the discipline or the sub-discipline called, law and economics.ı Why donıt you describe for me and for our viewers what the theory of law and economics is. Richard Posner: Itıs the notion that the legal system is a system of regulating economic activity in the broadest sense where economic activity includes the choice, you know, whether to become a burglar or whether to get married or get divorced, uh, whether to drive fast or slow. These all can be modeled as economic choices as balancing costs and benefits Ben Wattenberg: You have been criticized for putting everything in an economic realm. And one of your critics notes that youıre either in favor or apologize for or are neutral about hereıs the list female circumcision, bestiality, human sacrifice, infanticide, slavery, pornography, prostitution as a substitute for marriage, selling of infants although not older children to pedophiles, and as the grand-catchall, a moral relativist. How do you plead Judge? Are you a moral relativist? Richard Posner: No no, no, no, no. Most of the things you list are things that I would regard as immoral, profoundly wrong, criminal. Not everything. I donıt have particular concerns about pornography. for example. But all I mean to say is that these are judgements we make from our standpoint in terms of our values in our society, not necessarily universal. Ben Wattenberg: But like you mention human sacrifice. Richard Posner: Right, well Iım thinking the Aztecs. Well for us, of course, itıs not only offensive, itıs bizarre. But in an Aztec context, if you were an Aztec (laugh) in the sixteenth century and we come to you and say, you know, human sacrifice is a bad thing,ı in their world, in their world view, they will answer you back and theyıll say, well thatıs what you think, but we have this system of beliefs in which human sacrifice is central.ı So I donıt think we should exaggerate our ability to appraise alien customs from some universal standpoint and say thatıs wrong. Ben Wattenberg: I think in that list what I didnıt finish was you made roughly the same point about the Nazis, that we could abhor what they did but that was within their value system killing millions of innocents. Richard Posner: What the difference is and I think this is relevant to the Nazis and also to the Aztecs--some of these alien beliefs are based actually on factual claims. And if the factual claims are false, then you have a real basis for criticism. You donıt say, the Nazis are cruel, theyıre savages,ı you say, look they had, they founded their ideology on erroneous views about race.ı Similarly if the Aztecs believed that human sacrifice makes the crops grow faster, you can point out to them, no, thatıs incorrect.ı Now if they back up and say, well even though we were convinced it doesnıt make the crops grow faster, still we believe itıs a good thing, their souls go to heaven fast,ı or something like that, we canıt really argue with people like that. Theyıre arguing from different premises. Ben Wattenberg: How does that relate to the law? Richard Posner: Only in the sense that uh, when youıre doing economic analysis, you donıt want to become sort of convulsed making value judgements. You want to look at these things in a detached way. So you donıt become indignant about criminals, you say, well criminals are making a choice.ı And if we increase the severity of punishment or if we increase the investment in police, that will make a criminal career more costly and the criminals will respond by committing fewer crimes or going straight. Ben Wattenberg: You are called a conservative. Is that accurate? Or, youıre also what, I think I saw the term an eclectic libertarian.ı Richard Posner : Yes, I consider myself conservative in the sense that on a number of really important issues such as the role of free markets in society, the importance of strong national defense, the importance of holding people responsible for their criminal or other anti-social acts, yes, I am extremely conservative. On the other hand, I do not share the values of social conservatives. So Iım not troubled by, you know, a homosexual marriage, say. That seems to me a little bit odd idea but if thatıs what people want, if they want to get married, it doesnıt bother me because theyıre not hurting other people. And the same thing with peopleıs religious beliefs, lack of religious beliefs. If itıs consensual activity of competent adults and itıs not hurting other people, then it doesnıt bother me. I donıt think we should be offended by it or disturbed by it, let alone bring the law to bear on it. Ben Wattenberg: Well you are particularly tough in your book, Public Intellectuals, on Judge Robert Bork. I mean, how would you characterize his views and how would you oppose them? Richard Posner: I am critical of the way he has written about the abortion controversy and particularly about the very strong views he took about the so-called partial birth abortion.ı And also I donıt share his general pessimism and his view that the country is decadent and that what we need is a revival of religious belief. A lot of the social conservatives, I believe, themselves do not have religious beliefs, but they believe that itıs good for ordinary people to have them. And that kind of two-tier belief structure bothers me. Ben Wattenberg: So youıre saying that theyıre saying that religion is good for other people, but in their personal life they donıt practice it. Richard Posner: Exactly, exactly. In other words, they feel theyıre superior people who donıt need, you know, supernatural sanctions and rewards but the ordinary people do. That seems to me to be a condescending view. I donıt mind condescension as such but I donıt think itıs accurate. I think. Ben Wattenberg: All right. Well, what led you to write this book, Public Intellectuals? Richard Posner: Well I was struck by the fact that in two recent national crises, the Clinton/Lewinsky scandal and impeachment and then the Presidential election deadlock in Two Thousand, all sorts of intellectuals, particularly academics, were mouthing off about these very difficult, complicated legal, political, social issues. And I thought they were just remarkably off key, and it seemed to me to be a phenomenon worth systematic examination. Ben Wattenberg: Well you do a systematic examination. There are stacks of charts in here and some mathematical formulae about public intellectuals and the title of the book is Public Intellectuals, a Study of Decline. Now as an economist or one who writes about economists and certainly is very familiar with the use of numbers, how can you make the case that your numbers are valid if they donıt have a baseline? If you are saying declineı decline represents a process over time. You have to have A and then you say itıs declined to B. Well you donıt have A, you have B and you say, hey a lot of these people are just a bunch of jerks.ı And you have - I mean I may agree. On a lot of them, I happen to agree with you and some I donıt. But where is the scientific aspect of that? Richard Posner: Itıs missing. Ben Wattenberg: Itıs missing? Richard Posner: No, thatıs a good criticism. Yes, I donıt have a baseline and so, insofar as I argue that thereıs a decline in the quality or, really, the impact of public intellectuals, thatıs anecdotal and impressionistic. And mathematics or the statistical part is much more limited, and itıs really an effort not to measure decline or anything like that, but to give us some sort of systematic sense who are the current public intellectuals, how does it break down by ethnicity, by sex, by age and field and so on. Ben Wattenberg: Your Honor, have I caught you in an error in your subtitle, A Study in Decline? Richard Posner: No, itıs just that the statistical part of the book is one chapter out of ten. And the other chapters do try to provide evidence that there has been a decline but not statistical evidence. Ben Wattenberg : Okay. First of all, what is a public intellectual? Thatıs the title of the book, letıs try to clear the ground. Richard Posner: Well someone whoıs using the ideas that are drawn from the intellectual tradition; it could be philosophical, economic, sort of high-class ideas. But trying to apply these ideas to issues that are of concern to real people and communicating this application, communicating analysis of these problems to people. So. Ben Wattenberg : To a broader public. Richard Posner: To a broader public, so itıs not just being interested in what interests ordinary people, but trying to speak to them. Ben Wattenberg: Okay. Briefly put, what is your problem with public intellectuals today? Richard Posner: The problem is.. Ben Wattenberg: Whether or not theyıre in decline, but just right. Richard Posner: Right. The problem is that today they are mainly, by no means only, but mainly theyıre professors. So theyıre professors moonlighting as public intellectuals. Theyıre not subject to any kind of sort of discipline. And that wouldnıt be too bad if they had the kind of experience and knowledge that enabled them to speak intelligently to public issues. But the modern academic is someone who generally has led a very cloistered life, never left school, went from being a student to being a teacher, always living within the Ivy walls. And is specialized, often very narrowly specialized. And so you know, you could be a superb historian and that might mean you knew everything about the sixteenth century Ottoman Empire, or something like that. That doesnıt mean you have anything to say about what the framers of the Constitution envisaged as grounds for impeaching the President. Ben Wattenberg: Well, there is some slop-over from one discipline into another and if a person has his Ph.D. in sixteenth century Ottoman history, one assumes that he took a lot of American history courses, world history courses, European history courses and heıs entitled to have so Richard Posner: Iıd have to disagree with you. I think knowledge has become so specialized, my guess would be most biologists are actually not competent to address most issues in biology. I mean you could be a terrific biologist and your field is some butterfly in Guatemala. And you study the butterfly and its habits and that casts certain light maybe on behavior of other insects, but that doesnıt mean that you know anything about cell division or something like that or. Ben Wattenberg: Well of the examples you use, speaking of butterflies, is the example of Paul Ehrlich, who is a biologist and wrote one of the most important books of the century, all entirely wrong-headed in my judgement, and in your judgement. Richard Posner: The Population Bomb, yes. Ben Wattenberg: The Population Bomb. So whatıs his flaw? Did he go out of his discipline? Richard Posner: Heıs a Malthusian. You remember Malthus thought that population would grow faster than agriculture production and that would lead to famine or war. And thatıs exactly Ehrlichıs line, that population grows faster than agricultural production, therefore, weıre going to have mass starvation. Thatıs what he was predicting in 1970, mass worldwide famines by 1980. Now, Malthus has been discredited in economics for at least a century. But you see one of the problems is that people in hard fields like the natural sciences are contemptuous of the soft fields. So they think that they can opine about subjects like population or economics generally, because they think or history because they think thatıs or public affairs or military history or something because they think those are soft fields and that the bright people can say something interesting about anything. Thatıs a great fallacy: the notion that people who are brilliant in some academic specialty are smart and knowledgeable across a broad range of issues. Ben Wattenberg: And yet you write, as much as anyone I know, across a broad range. I mean, we gave a list at the beginning, you write about almost everything under the sun. Are you bright and qualified on all of those topics? Qualified forget bright, thatıs a value judgement. Richard Posner: Iım not denouncing generalists, but there are ways of writing about fields that are not your fields in ways that are appropriate. Now, for example, I donıt know anything about ecology and Iım not going to make any predictions about world famines. But I do know is that if in 1970, Paul Ehrlich predicted massive famines in 1980, and they didnıt occur in 1980, then I know heıs wrong. I donıt have to be an ecologist to criticize him. Ben Wattenberg: Okay, letıs see if we can just do a game here. Iım going to read off a couple, more than a few, names of the people you slash and burn here, liberals and conservatives, just so our audience gets a sense of what you think about them. And youıll have to keep them brief. We did Robert Bork. What about Alan Dershowitz? Richard Posner: Dershowitz is a person who achieved celebrity status by being involved in prominent cases. And heıs written .best-selling books and heıs very active and noisy. But what I object to in Alan Dershowitz is the fact that, whenever he speaks, heıs identified as a Harvard Law School professor, which he is. But he doesnıt bring an academic detachment, sobriety or depth of knowledge and thought to his public intellectual ventures. Heıs partisan, heıs angry, heıs extreme. Ben Wattenberg: Okay. The economist at MIT, Lester Thurow. Sometimes called Less than Thorough.ı Richard Posner: Heıs an excellent example, like Paul Ehrlich, of a professor, perfectly reputable economist who made reckless predictions which history has falsified already, but it doesnıt stop him from continuing to make absurd predictions. Ben Wattenberg: He said that America is in decline and Japan is going to go.. Richard Posner: Yes, first it was America was in decline and Japan and Germany had shown the way toward a more humane capitalism and they would own the twenty-first century. Now heıs saying Japan and Germany are in decline and theyıll have to imitate the United States. Heıs a person who will say things like, ³In the year 3000, economists will look back and say² Thatıs just irresponsible and for a professor to do that I think really damages the dignity and the esteem in which the academic career should be regarded, to have people talk like that. Ben Wattenberg: I am reminded, I worked on the White House staff for President Johnson in the company of John Roche, who you probably knew, and this was during the Vietnam War. And there were all these full-page ads. and he had a little schtick where he sort of parodied them as microbiologists for peace and freedom in Vietnam.ı I mean thatıs kind of what youıre getting at. Edward Luttwak, what used to be called a defense intellectual.ı Richard Posner: Right. And he is, you know, a genuine military historian and very knowledgeable and writes well. But he, too, he has this terrible record in predictions, terrible; starting with when he expected the Soviet Union to invade China. Then when he said the Soviet invasion of Afghanistan was a big success. Then when he predicted that it would be a disaster if we sent ground troops into Iraq in 1991, and then just a few months ago he was predicting a big flop for us if we went into Afghanistan. He was actually sort of an expert on Afghanistan. Having been wrong about the Soviet Union in Afghanistan, now heıs wrong about the United States. And also, you know, he has this sideline as a kind of Thurowvian pessimist about capitalism, what he calls turbo-capitalism.ı And heıs been saying things like, the United States was going to become a third-world country.ı I mean, thatıs a reckless and heıs not an economist, so heıs going way outside his field and making these reckless predictions. But when he was in his field of military science, he was making erroneous predictions. Ben Wattenberg: All right. How about Jean Kirkpatrick, because I have a bone to pick with you on that. Richard Posner: Oh no, I think sheıs fine. The only thing I said critical of her is that there was this line that she subscribed to, as did others in the Seventies, that the Soviet Union has perfected the techniques of repression and that as a result, while a capitalist country could go communist, a communist country could never go capitalist. And that, of course, turned out to be wrong. Ben Wattenberg: Well I talked to her this morning about that because thatıs what you say. She says she never used the word never.ı She said something with a very different view, in which she said, ³In no instance have communist nations gone democratic.² Richard Posner: You donıt say something like that just to record a fact which everybody knows. You say it because of implications that you want the reader to draw for the future. Ben Wattenberg: Youıve since said some very nice things about, I guess your colleague, Nobel Laureate, Gary Becker. But you also take him to task because he comes out for term limits for judges. Richard Posner: Right, trying to take my job away from me. Ben Wattenberg: Try and take your job away, right. But you say in a sense that he has no right making that judgement. Heıs a wonderful economist, but where does he get off saying there should be term limits for judges? Richard Posner: The problem is, see this is whatıs very different, this is different in judges and academics. You really want a judgeship to be a terminal job. You donıt want the judge to be worrying about his next job. You donıt want to go in front of a judge and, whoıs judging your case, and you know that this guy has his eye on what his next job is going to be and how he can decide cases in the way that will be attractive to his next employer. So thatıs a problem. I donıt see the problem with professors. If a professor has, say, a five-year contract, the end of five years if he doesnıt work out in this university, if heıs good he can go work in another university. Ben Wattenberg: You have a chapter at the end of the book suggesting some modest proposals, I think by your own word, as to what can we do to increase the product of the public intellectual. Richard Posner: Well I think, as you mentioned earlier, what is particularly lacking here is accountability. And one dimension of accountability is simply tracking what these people are saying so that they can be criticized. It took a lot of work to Ben Wattenberg: A journal of retractions, I think. Richard Posner: A journal. It took a lot of work to dig out the predictions that Paul Ehrlich or Lester Thurow made many years ago, so theyıre not advertising their mistaken predictions. So we ought to have a record, and I think--I donıt know the details of the controversy over Cornell West at Harvard with President Summers but you can understand why a university president would consider it a matter of concern for a university what these professors are doing. Are they bringing universities into disrepute by associating them with activities that have no real intellectual substance to them? Ben Wattenberg: As I was reading from the book, just to wrap up, you attack both liberals and conservatives. My sense is that if there is a common theme to what you have against them, it is that they think America is an unhealthy country and you think itıs a healthy country. Is that fair? Richard Posner: Thatıs not the whole of it. But, yes, because there is a tendency for public intellectuals to take extreme positions because thatıs how you get attention, thatıs how you distinguish yourself from the run of the mill, and extremes in a political setting tend to be critical of whatıs going on. And yes, I do think thereıs excessive criticism of the country from both ends of the political spectrum. Ben Wattenberg: Okay. Thank you very much Judge Richard Posner. And thank you. Please donıt forget to send us your comments via e-mail. For Think Tank, Iım Ben Wattenberg. We at Think Tank depend on your views to make our show better. Please send your questions and comments to New River Media, 1219 Connecticut Avenue, NW, Washington, DC 20036. Or e-mail us at thinktank@pbs.org. To learn more about Think Tank, visit PBS on line at www.pbs.org, and please, let us know where you watch Think Tank. Back to top  Think Tank is made possible by generous support from the Smith Richardson Foundation, the Bernard and Irene Schwartz Foundation, the Lynde and Harry Bradley Foundation, the John M. Olin Foundation, the Donner Canadian Foundation, the Dodge Jones Foundation, and Pfizer, Inc. ©Copyright Think Tank. All rights reserved. 
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