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The Next Justice

The Next Justice: Repairing the Supreme Court Appointments Process

Christopher L. Eisgruber
Copyright Date: 2007
Edition: STU - Student edition
Pages: 272
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  • Book Info
    The Next Justice
    Book Description:

    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. InThe 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 Justiceprovides a welcome exit from the uninformative political theater of the current appointments process.

    eISBN: 978-1-4008-2782-4
    Subjects: Law, Political Science

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-xv)
  4. 1 A Broken Process in Partisan Times
    (pp. 1-16)

    Late on a January afternoon in 2006, Senator Charles Schumer was goading Samuel Alito to explain his stand on abortion rights. The Senate Judiciary Committee was in its second full day of hearings on Alito, George W. Bush’s nominee to succeed Sandra Day O’Connor on the Supreme Court. Twenty-one years earlier, Alito had said that the Constitution did not protect abortion rights. Schumer, a Democrat from New York, wanted to know whether Alito had changed his mind, or whether he continued to oppose abortion rights. Alito repeatedly refused to answer, saying that he did not want to commit himself about...

  5. 2 Why Judges Cannot Avoid Political Controversy
    (pp. 17-30)

    When John Roberts addressed the Senate at his confirmation hearings, he declared that judges, including Supreme Court justices, are like umpires. “Umpires don’t make the rules; they apply them,” Roberts testified. “I come before the committee with no agenda. I have no platform. Judges are not politicians,” he assured the senators. If seated on the Court, Roberts promised, “I will remember that it’s my job to call balls and strikes and not to pitch or bat.”¹

    Roberts has proven to be an odd sort of umpire. In contested cases during his first term as chief justice, Roberts consistently voted with...

  6. 3 The Incoherence of Judicial Restraint
    (pp. 31-50)

    “We want Supreme Court justices to exercise judicial restraint so that cases will be decided solely on the law and the principles set forth in the Constitution, and not upon an individual justice’s personal philosophical views or preferences,” declared Senator Charles Grassley, a Republican from Iowa, during the Roberts hearings.¹ Judicial restraint is a popular idea. After all, the idea of “unrestrained judges” does not sound very attractive. Not surprisingly, presidents, senators, and nominees all concur that judges should be “restrained” rather than “activist.”

    But what does “judicial restraint” actually mean? As we saw in the previous chapter, the Constitution...

  7. 4 Politics at the Court
    (pp. 51-72)

    The Supreme Court building is a fantastic edifice, at once majestic and quirky. Its impressive entry hall, lined with busts of the Supreme Court justices, and its opulent courtroom, draped in velvet, are open to the public, but most of the building is off limits to tourists. In these private spaces, the Court’s work gets done. The justices’ chambers line the outside of the building’s main floor. Marble hallways, with high ceilings and regal red carpets, link the chambers and divide the building into four quadrants. In the center of each quadrant is an Italianate courtyard, complete with fountains, where...

  8. 5 Why Judges Sometimes Agree When Politicians Cannot
    (pp. 73-97)

    Headline-grabbing Supreme Court cases about affirmative action, states’ rights, and abortion are often decided by narrow 5–4 majorities. One might suppose that such votes are typical of the Court’s docket. Not so. About one-third of the Court’s opinions in each of its recent terms have been unanimous. In these cases, the justices agree about which party should prevail and about what legal rule justifies that outcome.¹ In another group of the Court’s cases, the justices reach a unanimous judgment, but not a unanimous opinion: in other words, they agree about which side should win, but they differ about the...

  9. 6 Judicial Philosophies and Why They Matter
    (pp. 98-123)

    On the first day of the Roberts hearings, Senators John Kyl of Arizona and Charles Schumer of New York disagreed sharply about the Senate’s role. Kyl said that the Senate had no business asking nominees about their political ideology. Schumer, by contrast, said that such questions were the heart of the matter. On one point, though, Kyl and Schumer agreed. They both believed that the Senate had the right, and indeed the obligation, to ask about the nominee’s judicial philosophy. “Our proper role this week is to determine whether Judge Roberts has the character, the legal ability and the judicial...

  10. 7 How Presidents Have Raised the Stakes
    (pp. 124-143)

    When people discuss Supreme Court nominations, they usually focus on the Senate’s role. They argue, in particular, about whether confirmation hearings have become too political, too partisan, or simply too nasty. Books with titles likeThe Confirmation MessorThe Confirmation Warslament current practice and offer prescriptions for change. Much less attention gets paid to the process by which presidents nominate justices. It is easy to see why. The confirmation process is visible and confrontational, whereas the nomination process is secretive and unilateral. The adversarial character of a contested confirmation hearing reveals political and ideological divisions so that everyone...

  11. 8 Should the Senate Defer to the President?
    (pp. 144-163)

    Ugly fights over Supreme Court nominations are nothing new. Less than a decade after the nation’s founding, a divided Senate rejected President George Washington’s nomination of John Rutledge to serve as chief justice of the United States. Washington’s own party deserted Rutledge, who had previously served as an associate justice on the Court, because of a speech he had made criticizing the administration’s foreign policy. Partisan newspapers made scurrilous allegations against the nominee, charging that he had failed to pay his debts and might suffer from mental defects.¹ In the two centuries since Rutledge’s defeat, senators and presidents have battled...

  12. 9 How to Change the Hearings
    (pp. 164-177)

    If senators can investigate nominees on the basis of their records and reputations, then why should they have to testify? They should not, answers Benjamin Wittes of theWashington Post. Wittes has recommended that the Senate do away with the practice of interrogating nominees. He writes that the hearings “almost invariably prove an embarrassing spectacle that yields minimal information.”¹ In his view, “the Senate generally votes on nominees with a rough sense of who they are,” but not because of their testimony: “the nominees’ testimony added virtually nothing to our understanding of these people.”² Wittes accordingly proposes that the Senate...

  13. 10 What Kinds of Justices Should We Want?
    (pp. 178-185)

    In May and June of 2003, speculation swirled that Chief Justice William Rehnquist or Justice Sandra Day O’Connor might soon resign, giving President George W. Bush his first opportunity to appoint a member of the Court (the anticipated resignations did not happen, of course).¹ Rumor had it that the Bush administration was compiling a short list of candidates. Two Democratic senators, Patrick Leahy of Vermont and Charles Schumer of New York, responded with public letters to the president urging him to nominate a moderate if a vacancy arose. “[C]onsultation and moderation” should be the “two guiding principles for selecting judicial...

  14. 11 The Path Forward
    (pp. 186-191)

    The recent hearings on John Roberts and Samuel Alito, like the hearings on Ruth Bader Ginsburg and Stephen Breyer, were collegial and decorous. Roberts and Alito earned confirmation without having to endure the kinds of harsh allegations leveled against Robert Bork and Clarence Thomas. Some observers might take heart from that fact. On another view, though, the Roberts and Alito hearings were spectacular failures. That is not because Roberts and Alito were bad nominees. They are undoubtedly first-rate lawyers, and they appear to be thoughtful and decent men. It is possible that they will turn out to be very good...

  15. Notes
    (pp. 193-224)
  16. Index
    (pp. 225-239)