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The Next Justice: Repairing the Supreme Court Appointments Process

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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.

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.

"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.

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. And even though moderate Senators aren't so ideologically oriented, tending to focus on the nominee's technical qualifications, and as long as those are in good order, only voting against if the nominee has an "extreme" ideology (e.g., the 2005 "no filibuster" agreement between moderate democratic and republican senators), they obviously do consider ideology as well.

In fact, on the surface, the criteria used by moderate Senators sound very close to Eisgruber's recommendation, which is that, except in unusual circumstances, Senators should vote for moderate nominees, not "rigid or extreme ideologues" of either the left or right.

So if, despite the largely vapid nature of the choreographed nomination hearings, liberal and conservative Senators are usually well aware of a nominee's ideology (and don't hesitate to vote based on that), and moderate Senators are too but allow it to influence their vote only when, as per Eisgruber's recommendation, the ideology is rigid or extreme, what is Eisgruber's ground for complaint?

2) Eisgruber correctly chastises recent Presidents, particularly Nixon, Reagan, and GW Bush, for disingenuously characterizing some of their obviously conservative judicial nominees as "moderates". But, Eisgruber does the same thing, only in a liberal direction. His definition of a judicial moderate (p. 120) is a judge who has two characteristics:

a) a "lively and thoughtful understanding of the limits of the judicial role" , which Eisgruber translates as a procedural belief that justices should have a healthy respect for both past court decisions (precedent) and the legitimate role in the law of other institutions, such as congress , legislatures, and the executive. In other words, a moderate Justice proceeds cautiously, and doesn't try to over-reach his/her authority and transgress on the policy-making powers of others.

b) "an open-mindedness towards novel claims of constitutional justice brought by unpopular or disadvantaged groups or persons", which Eisgruber says (p. 121) is a way to make the country "more inclusive and responsive" to the claims of groups that have suffered due to malice, misunderstanding, or neglect.

The problem? While the first aspect of Eisgruber's definition of judicial moderation is seemingly ideologically neutral (or moderate), the second aspect is clearly ideologically liberal. To be sure, open-mindedness is a moderate, and admirable quality. But to be truly "moderate", one can't be open-minded towards the justice claims of some societal groups but not others. Why doesn't Eisgruber's definition of "moderate" emphasize open-mindedness towards the novel justice claims of large corporations? Or the wealthy? Or white males?

Surely, a moderate would be open-minded towards the justice claims of everyone in our society. A special sensitivity to the justice claims of disadvantaged groups such as gays, racial minorities, and religious minorities is -whether you think it a good idea or not - clearly characteristic of liberal ideology, just as a focus on the justice claims of corporations and the rich is characteristic of conservative ideology.

Thus, Eisgruber inadvertently gives away his game: He wants to see more justices appointed who will vote liberal on social issues such as gay rights, affirmative action, and abortion. His Trojan horse is to convince us to re-define characteristically liberal ideology as "moderate".

Further evidence of Eisgruber's conflation of 'liberal' with 'moderate' lies in how he uses these terms to characterize sitting justices. For example, on page 87 he refers to Justice Stevens as a liberal, but on page 44 he calls him a moderate. Likewise, on page 64 Justices Breyer and Souter are called liberals, but on page 121 they are called moderates.

I wasn't fooled by this, I hope you won't be, either.