I regularly say that this blog is limited to unserious topics, because I have other places to write seriously. But because I'm getting an A3Groupielanche from her link to me in her post on Judge Easterbrook, I feel compelled to rebut an item I personally know to be untrue: the claim that the judge is "not very easy on his clerks."

When I first met Frank Easterbrook, I was a 22-year-old just out of college attending a reception for new 1Ls. Wearing an ill-fitting Men's Wearhouse suit, clumsily holding a vodka and tonic at what might very well have been my first grown-up cocktail party (my parents were essentially teetotalers outside of Manischewitz), I found myself standing next to the judge and noone else, so I attempted small-talk: "I really liked that piece you wrote for last week's New Republic." The judge chuckled, and answered "That wasn't me. That was my brother Gregg."

A similar tale, six years later: the judge has flown to Washington, D.C., to attend my ill-fated wedding. He already knows my friend Pete from his clerkship with Judge Posner, and introduced himself as "Frank" to my college friend Dan, who was attending a Boston-area law school. The three are chatting and the judge mentions an article he's writing, and Dan expresses interest: "Oh, are you a writer?" before learning why this is an embarrassing question for a law student to ask. "He said he was 'Frank'!" Dan protested to me later. "How was I to know? I thought he was just a cousin or something."

It would've been very easy for a more arrogant man to treat rudely both of these slights from punk law students; for all he knew, he wasn't going to see either one of these people ever again (and didn't, in the case of Dan). I can think of a certain Supreme Court Justice who at social events looks right past anyone below a certain political caste. But both times, Judge Easterbrook responded in good humor; he never mentioned my faux pas to me ever again, and went on to hire me as a clerk thirteen or fourteen months later. (That year, I singlehandedly and inadvertently disrupted the first attempt at creating a judicial clerkship cartel. But that's another story.) He was similarly generous with his time when my father visited me in Chicago, taking the time to chat with him for several minutes about Macintosh computer set-ups.

Perhaps there are clerks out there saying that the judge didn't treat them well. I haven't met them yet—and attendance at the annual clerk reunions/Star-Wars-movie events is remarkably high. Even the year it was held in Alaska. The clerks weren't to call him "Judge" or "Your Honor"; it was always "Frank." There were lunches, birthday parties, entertaining war stories, and helpful career advice sessions. As working conditions go, the year clerking for Frank was far superior to any of the eleven years I spent at a law firm.

Frank Easterbrook had a John Roberts-caliber legal career in the Solicitor General's office and in private practice—and then also had a top-notch academic career and twenty years as the best (and second-most prolific) appellate judge in America, and he's younger than Harriet Miers to boot. (Miers is being praised for her real-world legal experience, as she should, since that aspect is missing from the Court, but even there, she hasn't had a fraction of the influence of Easterbrook on antitrust and corporate law.) If he hasn't gotten a nomination, it's because no Republican president since Reagan has had the courage to nominate for the Supreme Court anyone who has written a law review article that challenges the conventional wisdom. Even though a Justice Easterbrook would have no power to legislatively implement his views on insider trading. And, indeed, he has written opinions to uphold laws he noted as economically inefficient:

Just as the Constitution does not enact Mr. Herbert Spencer's Social Statics, so it does not enact prescriptions from the pages of The Journal of Law & Economics—where, we may assume, an article will appear in due course adding this ordinance to the long list of laws whose costs exceed their benefits. "[A] law can be both economic folly and constitutional." CTS, 481 U.S. at 96-97 (Scalia, J., concurring). Chicago's law may well be folly; we are confident that it is constitutional.

It's a shame that neither of the Bushes have confidence in the wisdom of the Senate or the American people to recognize and reject an unfair attack.

Sidenote: Cass Sunstein would tell a story to his law students that implied that Judge Posner was unprincipled: "Strom Thurmond asked Posner at his confirmation hearing, 'Does the Constitution say what it means, and mean what it says?' And Richard Posner, who certainly has a more complex view of the Constitution than that, answered simply 'Yes, sir.'" A year later, in a legal interpretation seminar with Judge Easterbrook, the question of the Strom Thurmond confirmation hearing inquiry somehow came up, and Easterbrook told the same story—except, in his version, Posner went off on a lengthy monologue that confused Thurmond, while Easterbrook, four years later, was the one who politely replied to the same question "Yes, sir"—which is, I imagine, an honest answer. I looked at my friend Neil, who had been in the Sunstein class with me, and with whom I had marvelled at the Posner tale, and he looked at me with the same surprise. Moral: don't believe every apocryphal rumor you hear about Chicago judges, even if they come from seemingly reliable sources.