Frank H. Easterbrook - Nomination and Judicial Career

Nomination and Judicial Career

Easterbrook was nominated to the court by Ronald Reagan in August 1984 to a new seat created by 98 Stat. 333, 346; the U.S. Senate did not act on his nomination that year, and he was re-nominated in Reagan's second term on February 25, 1985. He was confirmed by the Senate on April 3, 1985, and received his commission the next day. The American Bar Association gave Easterbrook a low "qualified/not qualified" rating, presumably due to his youth and relative inexperience. In 2001, this rating was claimed by the George W. Bush administration as evidence of liberal bias in the ABA in its announcement that it would no longer confer with the ABA in selecting judicial nominees.

Among Chief Judge Easterbrook's most prominent opinions are:

• American Booksellers Ass'n v. Hudnut
• Kirchoff v. Flynn
• In re Erickson
• In re Sinclair
• United States v. Van Fossan
• Miller v. South Bend
• United States v. Marshall

Easterbrook attempts to make difficult legal issues more readily understandable through incisive and vivid writing. As a young judge in one of his early opinions, Kirchoff v. Flynn, 786 F.2d 320 (CA7 1986), a lawsuit over an arrest for feeding pigeons in a park, Easterbrook used such language as "trundled to the squadrol" to describe an arrest; and states of the pigeon-feeder that she "will never be confused with the 30th Earl of Mar, whose hobby was kicking pigeons." He describes a controversy over whether a police officer, or the plaintiff's own bird, had attacked the plaintiff with these words: " says that he was clobbered by a pair of handcuffs; maintains that the ' red macaw drew the blood when it landed on 's head during the fracas and started pecking." In a footnote, Easterbrook added "Predatory birds rarely attack large animals whose eyes they can see, 11 Harv.Med. School Health Letter 8 (Feb.1986), and perhaps William's eyes got distracted, to his macaw's glee." This serves as an example of Easterbrook's sophisticated deftness with language and breadth of knowledge. This deftness sometimes, however, results in passages from his opinions that require dictionaries in order for a layman to understand, such as in Frantz v. U.S. Powerlifting Federation, 836 F.2d 1063 (7th Cir. 1987), where he wrote, "The absence of ineluctable answers does not imply the privilege to indulge an unexamined gestalt."

University of Chicago Law School Dean Saul Levmore has stated that "Easterbrook is an important influence on legal education through his judicial opinions. Course after law school course has changed for the better as Judge Easterbrook’s opinions have made their way into the curriculum. So long as he decides cases, and decides them in a way that cuts to the heart of an issue with such skill and pressure, no area of law can be dull." One University of Chicago Lecturer has referred to Easterbrook as "the world's greatest living jurist."

Easterbrook is particularly demanding during oral argument, where he has a reputation as "hard-nosed and demanding." In Schlessinger v. Salimes (1996), for example, he characterized the lawsuit as "goofy" and the appellant's arguments as "nutty" before issuing an order to show cause why the appellant and lawyer should not be sanctioned for a frivolous appeal. His demeanor has won him enemies in the bar. In 1994, the Chicago Council of Lawyers published an "evaluation" of the Seventh Circuit that evaluated all the judges and the court's procedures in general, but notably focused extensively on only two: Easterbrook and then-chief judge Richard Posner. The evaluation of Easterbrook contained an unusual number of grievances; and the Council did not specify authorship, so the criticism is anonymous. In a section devoted to Easterbrook's judicial demeanor, the report claims he "has consistently displayed a temperament that is improper for a Circuit Judge. While Judge Easterbrook has many good qualities, there is a widespread belief that he is arrogant and intolerant with those who do not match his own intellectual level. This problem seriously interferes with the performance of his duties." The report continued to state Easterbrook "has been resoundingly and repeatedly criticized as being extremely rude to attorneys at oral argument" and that "some attorneys" said that due to the judge's demeanor they and their clients did not feel they got a fair hearing. The Council pointed to another opinion, Kale v. Obuchowski, which derided a lawyer's argument as "pettifoggery" and concluded "This is a frivolous, doomed and sanctionable appeal." The Council argued that even if the lawyer's conduct was sanctionable, "the language chosen does not enhance the administration of justice."

However, this review by the Council was never repeated, lending partial support to the defenders of Easterbrook and Posner that the report was an opportunity for anonymous venting by lawyers who were unhappy with the results of Seventh Circuit decisions, in no small part thanks to the decisions of Reagan appointees Easterbrook and Posner. Posner has recently commented about the report, "You have here some anonymous people who are talking to the Chicago Council of Lawyers. How much credence should we put on these people? They can be sore losers. They can be crybabies."

Easterbrook became Chief Judge of the Seventh Circuit in 2006. He is a member of the Judicial Conference of the United States and head of the Judicial Council for the Seventh Circuit.