The Next Justice: Repairing the Supreme Court Appointments Process [Hardcover]

Christopher L. Eisgruber (Author)

Book Description

Publication Date: September 24, 2007 | ISBN-10: 0691134979 | ISBN-13: 978-0691134970 | Edition: 1 edition

The Supreme Court appointments process is broken, and the timing couldn't be worse--for liberals or conservatives. The Court is just one more solid conservative justice away from an ideological sea change--a hard-right turn on an array of issues that affect every American, from abortion to environmental protection. But neither those who look at this prospect with pleasure nor those who view it with horror will be able to make informed judgments about the next nominee to the Court--unless the appointments process is fixed now. In The Next Justice, Christopher Eisgruber boldly proposes a way to do just that. He describes a new and better manner of deliberating about who should serve on the Court--an approach that puts the burden on nominees to show that their judicial philosophies and politics are acceptable to senators and citizens alike. And he makes a new case for the virtue of judicial moderates.

Long on partisan rancor and short on serious discussion, today's appointments process reveals little about what kind of judge a nominee might make. Eisgruber argues that the solution is to investigate how nominees would answer a basic question about the Court's role: When and why is it beneficial for judges to trump the decisions of elected officials? Through an examination of the politics and history of the Court, Eisgruber demonstrates that pursuing this question would reveal far more about nominees than do other tactics, such as investigating their views of specific precedents or the framers' intentions.

Written with great clarity and energy, The Next Justice provides a welcome exit from the uninformative political theater of the current appointments process.

Editorial Reviews

From Publishers Weekly

With President Bush’s recent Conservative appointments to the Supreme Court shifting the Court perceptibly to the right and the retirements of several liberal justices looming, the appointment process for the next justice promises to be a partisan and bruising affair. And, according to Christopher L. Eisgruber—former Supreme Court clerk and Rockefeller Professor of Public Affairs at Princeton University—without a radical change in Senate Confirmation Hearings, the process will continually fail to provide solid reasons to confirm or reject a nominee. Eisgruber argues that Justices have their own judicial philosophy and that Senators have the right to reject a nominee if they find the nominee's philosophy objectionable. That said, he also contends that the current exchange between nominees and Senators, often centering on how nominees might rule on specific controversial issues, is ill conceived and damaging to the Court. Offering a different approach to the self-indulgent and demonstrably futile examinations that Senators currently direct at nominees, Eisgruber underscores this new method with well-designed, in-depth questions constructed to address nominees' fundamental approach to Constitutional law. Unfortunately, other than the growing consensus that the confirmation system is broken, Eisgruber offers no reason why the decision-makers he hopes to influence will abandon their deeply ingrained partisanship. Nevertheless, readers will side with Eisgruber, and applaud his concise and lucid case for a more thoughtful and workable process.
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Review

What do we want in a Supreme Court Justice, and how should we get it? Eisgruber, a former Supreme Court clerk, argues that the first step is to do away with the idea that the process can or should be entirely divorced from politics...Eisgruber's practical recommendations for fixing the confirmation process boil down to having senators stand up for themselves during hearings, unafraid to say no, but his larger point is that, in pursuit of justice, moderation is the paramount virtue. -- The New Yorker

[A] concise and lucid case for a more thoughtful and workable process. -- Publishers Weekly

The focus of the book...is not on jurisprudence, but on the inadequacy of senatorial confirmation hearings.... Eisgruber recommends that the Senate correct the confirmation process by following the example of the executive branch. Thus, the Senate should 'rely less on hearings and more on the kinds of evidence that presidents use': writings, speeches, and, for nominees who are judges, opinions. He continues that the Senate should not rely on futile inquiries about a nominee's commitment to strict construction of statutes or finding the original intent of the founding fathers. Instead, he suggests that the Senate ask nominees about their interpretation of abstract language in the U.S. Constitution...[This] is a thinking person's book. Anyone concerned about the future of the U.S. Supreme Court, however, will find it fascinating. Elegantly written, closely reasoned, and carefully researched, the book is well worth the reader's thought and time. Whether or not you agree with Eisgruber's suggestions and conclusions, The Next Justice remains stimulating, even provocative. -- Stewart Pollock, Newark Star Ledger

Eisgruber's analysis is essential reading for both lawmakers and the public. -- Deirdre Sinnott, Foreword Magazine

The appointment process could gain a lot from Mr. Eisgruber's proposal...The Next Justice makes a start, in the calm before the circus of the next nomination, toward the debate we must have if we are to overcome the 'confusion'. -- Daniel Sullivan, New York Sun

The Next Justice should be a required reading for all the members of the Senate Judiciary Committee, so insightful and informative is Eisgruber's analysis of this profoundly important subject. For decades the nation has been wrestling with the question of how to avoid cyclical partisan warfare over Supreme Court appointments. This book goes a long way toward defining sensible, balanced criteria for doing so. -- Ronald Goldfarb, Washington Lawyer

The Next Justice contains many interesting descriptions of the Court, including its inner workings, the role of the law clerks, and the process of decision-making. Eisgruber has a great deal of respect for the Supreme Court as an institution, and he would like to have a confirmation process worthy of the Court. So would we all. -- Charles S. Doskow, The Federal Lawyer

While readers may disagree with how Eisgruber defines the term 'moderate justice,' no one who has even a passing interest in the composition of the Court should find Eisgruber's book anything less than thought-provoking. In fact, it should be required reading for any college constitutional law class and for first-year law students. -- E. Drew Britcher, Trial

As Australian governments venture tentatively towards greater transparency, Eisgruber's text is a useful reminder of the dangers they need to avoid. In the end, he suggests that reforms depend upon an appeal to the political process to lift its game. -- Michael Kirby, Australian Law Journal

[Eisgruber's] volume is a sensible, illuminating, and sometimes insightful look at the confirmation process. . . . For a subject that can be emotionally charged, the author has provided an account that is eminently readable and informative, one that is entirely manageable and digestible in an evening. -- Donald Grier Stephenson, Jr., Journal of Supreme Court History

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Product Details

• Hardcover: 272 pages
• Publisher: Princeton University Press; 1 edition edition (September 24, 2007)
• Language: English
• ISBN-10: 0691134979
• ISBN-13: 978-0691134970
• Product Dimensions: 9.3 x 6.1 x 0.9 inches
• Shipping Weight: 1 pounds (View shipping rates and policies)
• Average Customer Review: 4.2 out of 5 stars  See all reviews (4 customer reviews)
• Amazon Best Sellers Rank: #1,646,600 in Books (See Top 100 in Books)

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Most Helpful Customer Reviews

8 of 9 people found the following review helpful:

5.0 out of 5 stars Yet Another Look at Supreme Court Nominations, November 9, 2007

By 

Ronald H. Clark (WASHINGTON, DC USA) - See all my reviews
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This review is from: The Next Justice: Repairing the Supreme Court Appointments Process (Hardcover)

There recently has been a deluge of very solid books discussing the almost pathetic state of the process for confirming nominees to the Supreme Court. I have reviewed several of these books on Amazon, and each one makes a contribution to trying to deal with the present situation. This book, by a Princeton provost and Professor of Public Affairs, is somewhat unique. First, the author clerked for Justice Stevens and brings to bear an insider's perspective. One might argue that this is not an advantage, since the focus here is on Senatorial confirmation practices. But it is because what makes this book uniquely interesting is the author's analysis of the problem and his prescription for improvement.

Second, for Eisgruber, it is foolish to waste time arguing about whether Justices make policy, ought to be no more than impartial umpires, and should be forced to disclose their views of particular cases during confirmation hearings. In fact, Eisgruber believes far too much emphasis has been placed on the importance of hearings, which as recent examples demonstate, often simply don't do the job. The author suggests that making controversial decisions is simply built into the role of being a Justice, since the Constitution speaks in abstract terms, with implied principles, and legal history often cannot provide explicit answers to the intentions of the framers.

Rather than focusing on hearings, Eisgruber recommends the Senate investigate nominees much as Presidents do--get to the basics of their philosophy of judicial review (i.e., "what it is good for"), their views regarding when it is appropriate to defer to the elected branches, their conception of the "judicial role," and what their overall judicial philosophy consists of. This approach will yield, he suggests, true judicial moderates for the bench. For Eisgruber, the notorious Bork hearings were a success, since they represented the only recent example of an extended dialogue with the nominee about his judicial philosophy. Eisgruber recognizes that we will probably never ever have a repeat, and this is another reason he discounts hearings. He does offer, however, suggestions for improving hearings and some possible questions that would elicit pertinent information, rather than evasive discharges of octopus-like ink, from nominees.

This is a valuable book not only because it offers important constructive suggestions for improving the hearing process, but also because Eisgruber's discussion of how Justices make decisions and the factors that influence their decision making (which is really the bulk of the book) is laced with the insight of a former clerk for one of the acknowledged giants of the Court. There are excellent notes, but not a bibliography unfortunately. A significantly important contribution to the literature on this topic.

1 of 1 people found the following review helpful:

5.0 out of 5 stars Solid and Fair Analysis of the Process, August 7, 2008

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Timothy Haugh (New York, NY United States) - See all my reviews
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This review is from: The Next Justice: Repairing the Supreme Court Appointments Process (Hardcover)

The appointment process for nominees to the United States Supreme Court is broken, asserts Christopher Eisgruber, and it needs to be fixed. Considering the power wielded by the nine justices, this is not an assertion with which many would argue. The nomination process has long been contentious but, particularly since the Bork hearings, it has become a colossal waste of time. Recent hearings have been an exercise in stonewalling that tell senators and the American people next to nothing. The issue becomes, then, how to fix it. This is where the going gets trickier.

But Mr. Eisgruber is careful in the development of his theme. He starts by pointing out that it is impossible to get politics out of the process and that people who assert the opposite are being disingenuous. The Constitution has too many abstract ideas and too much vague language for a person to be neutral in interpreting it. Even parsing out the implications of what seems to be very clear language requires judgement that is a reflection of a person's beliefs. He points out that "judicial restraint," "strict construction," and "originalism" are all terms reflecting ideological slant (that can work both ways) and that "deference to elected officials," while possible, is rarely achieved even by those who claim to follow it (which almost no one does anymore).

Mr. Eisgruber then gives us some background on how the Court works, as an insider who clerked there. He takes us through some history, and the impact of certain court decisions. He points our that even Supreme Court justices can't do anything they want, bound as they are by certain procedures and requirements. However, knowing their judicial philosophy offers the most insight into the type of justice a person will be.

Judicial philosophy is the key for Mr. Eisgruber. He points out that every president since Eisenhower has vetted their nominees carefully and new fully well the type of justice they were putting on the court. That, unlike what some people think, there have really been no "surprises." Senators have done less well in determining what the judicial philosophy would be and Mr. Eisgruber has a number of suggestions and lines of questioning that might help senators ferret out this information for the American people. If the hearings could do that, he thinks, then the process would do what it is supposed to do.

He is realistic, however. He seems to understand that even his suggestions won't work without a government committed to trying to do things better, something that doesn't necessary seem to be on the horizon. He also is a realist in that it is clear that certain arrangements will make certain things happen whether we like it or not. (i.e. A conservative president with a conservative majority in the Senate will get conservative justices through and vice-versa. Moderate justices are the result of presidents and Senates with different ideological slants.) But he is optimistic about what could be done if we were willing to demand things to be different.

Overall, I like what Mr. Eisgruber does with this book. He is a very clear and disciplined writer, if not a dynamic one--pretty much what you might expect from someone who has spent his career in the field of law. He is also very open about the fact that he tends towards the liberal side of the political spectrum. And yet, he then proceeds to give a very balanced assessment of the appointment process, peppering his explanations with his insights from working for both liberal and conservative judges over the course of his own career. He doesn't demonize conservative justices or canonize liberal ones and, though he points the direction for what he feels would be a fairer process, he understands that even a "fair" process wouldn't necessarily give him a Supreme Court of the bent he might desire personally. To handle such a charged subject with this level of fairness is something that deserves high praise.

5.0 out of 5 stars Justices cannot avoid controversial choices simply by adhering to the law, August 19, 2009

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ROROTOKO (rorotoko dot com) - See all my reviews

This review is from: The Next Justice: Repairing the Supreme Court Appointments Process (Paperback)

"The Next Justice" is on the ROROTOKO list of cutting-edge intellectual nonfiction. Professor Eisgruber's book interview ran here as cover feature on July 22, 2009.