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The Next Justice: Repairing the Supreme Court Appointments Process

4.4 out of 5 stars 5 customer reviews
ISBN-13: 978-0691143521
ISBN-10: 0691143528
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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.
Copyright © Reed Business Information, a division of Reed Elsevier Inc. All rights reserved. --This text refers to an out of print or unavailable edition of this title.


"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

Product Details

  • Paperback: 256 pages
  • Publisher: Princeton University Press (June 7, 2009)
  • Language: English
  • ISBN-10: 0691143528
  • ISBN-13: 978-0691143521
  • Product Dimensions: 5.7 x 0.7 x 8.9 inches
  • Shipping Weight: 12.6 ounces (View shipping rates and policies)
  • Average Customer Review: 4.4 out of 5 stars  See all reviews (5 customer reviews)
  • Amazon Best Sellers Rank: #1,838,806 in Books (See Top 100 in Books)

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By Ronald H. Clark VINE VOICE on November 9, 2007
Format: Hardcover Verified Purchase
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.
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Format: Hardcover Verified Purchase
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.
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Format: 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.
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This book has two commendable characteristics, one procedural and one substantive. Procedurally, the author does a fine job of distilling his expert knowledge of constitutional law into language that is clear and easily accessible to the layman. Substantively, he persuasively explains how our Constitution, written as it is in abstract, general terms, requires that Supreme Court justices make politically controversial judgments. Thus, contrary to some commentators who say that only a nominee's technical qualifications should be relevant, Eisgruber shows that a nominee's judicial philosophy, which includes their ideology, should be a basis for a Senator voting yes or no on a nominee.

These points alone make the book worth reading.

That said, Professor Eisgruber makes a couple of problematic claims that ultimately make his recommendations for improving the appointment process unlikely to be helpful. And since that's the point of the book, it must weigh heavily in my rating:

1) His specific explanation of how the appointment process is "broken" doesn't seem to comport with reality. Eisgruber argues that Senators rely too heavily on the public hearings, in which meaningless concepts like "judicial restraint" are bandied about by carefully coached nominees, and do not spend enough time combing through the nominee's past history to glean the ideological and procedural values that determine what kind of Justice the nominee will be. But, this claim doesn't stand up to strict scrutiny.

Why not? Because most if not all Senators obviously already *do* this. Liberal senators often vote against conservative nominees, and vice-versa. These senators are keenly aware of a nominee's ideology, and factor it heavily in their voting.
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