The Next Justice: Repairing the Supreme Court Appointments Process
Christopher L. Eisgruber
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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.
best understood as examples of how a justice’s procedural values, about matters such as the meaning of a fair trial, may produce departures from an otherwise predictably liberal or conservative pattern. Scalia’s procedural values generate a jurisprudence that is more complex and, in my view, more admirable than it would otherwise be. There is, however, very little evidence to suggest that these procedural commitments are the product of an originalist methodology that constrains Scalia’s ability
prosecutor investigating the Watergate break-in.31 The Court’s decision helped to end Nixon’s presidency. In Clinton v. Jones, the Court allowed Paula Jones to continue her lawsuit alleging that President Bill Clinton had sexually harassed her.32 Clinton’s deposition testimony in that case, in which he denied having a sexual relationship with Monica Lewinsky, eventually became the focus of attention for special prosecutor Kenneth Starr and led to Clinton’s impeachment. Impartiality and
different from those most necessary for other forms of federal judicial service. Supreme Court justices must have legal skills that enable them to identify what issues are posed by the cases before them, and they must have judicial philosophies that guide them appropriately as they make the politically controversial judgments needed to resolve those issues. Other federal judges must have legal skills that enable them to resolve disputes fairly and efficiently, often by articulating and
April 22, 2007. 4. Regents of the University of California v. Bakke, 438 U.S. 265 (1978); Grutter v. Bollinger, 539 U.S. 306, 347 (2003). 5. Cass R. Sunstein, “The Minimalist: Chief Justice Roberts Favors Court Rulings That Create Consensus and Tolerate Diversity,”Los Angeles Times, May 25, 2006, B11. 6. Henry J. Abraham, Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments Process from Washington to Clinton (Lanham: Rowman & Littlefield, 1999), 269. 7. Roberts
facilities that provide residential care to the mentally handicapped. Does the ordinance equally protect the interests of all persons in having some neighborhoods free from such facilities? Or does it protect disabled Americans less fully than other Americans? People often say, as Senator Hatch did during the Roberts hearings, that judges should interpret and apply the law instead of relying on their own political values. With provisions like the equal protection clause, that is a false