Christopher L. Eisgruber


On his book The Next Justice: Repairing the Supreme Court Appointments Process

Cover Interview of July 21, 2009

In a nutshell

Judge Sonia Sotomayor’s “composure remained intact and her confirmation to the Supreme Court seemed on track,” reported the New York Times on July 15.  No summary better captures the bizarre dynamic of recent confirmation hearings.  Senators grill the nominee mercilessly, and she tries to avoid saying or doing anything interesting.  Keep your cool and get confirmed—that’s the assignment.  Not surprisingly, many people wonder whether this is the right way to pick a Supreme Court justice.

Several popular books, with titles like The Confirmation Mess and Supreme Chaos, blame the Senate for politicizing the appointments process.  These books contend that the Senate should defer to presidential choices, examining a nominee’s legal acumen but making no effort to evaluate her values or politics.

The Next Justice:  Repairing the Supreme Court Appointments Process takes a different tack.  It argues that the confirmation process—indeed, the entire appointments process—is political by design.  The Supreme Court renders controversial decisions, and the Constitution divides the appointment power between the president and the senate.  Not surprisingly, the process has been bruising and partisan from the get-go (if you doubt that, consider the fate of John Rutledge, George Washington’s unsuccessful nominee for Chief Justice in 1795—he attempted suicide after senators rejected him because of his foreign policy views).

Depoliticizing the appointments process should not be our goal.  Instead, we should try to make it political in the right way.  To do that, we need to understand what distinguishes Supreme Court justices from one another and hence what distinguishes good nominees from bad ones.

Popular concepts like “judicial restraint” do not help much.  All the justices defer to legislators about some issues, but not others.  The liberals defer about gun control and affirmative action but not about abortion or gay rights; for the conservatives, it is the other way around.  Nor, unfortunately, does President Obama’s notion of empathy get us anywhere.  Sure, a good judge should understand the interests at stake in a case—but at the end of the day, she has to choose between competing interpretations of the law.  That requires a combination of values and judgment, what people often call a judicial philosophy.

The heart of The Next Justice is its effort to clarify the idea of a judicial philosophy.  It does that by describing what the Supreme Court actually does when it confronts hard cases.  Drawing on both historical research and personal observation, the book takes readers behind the scenes at the Supreme Court to show how the justices reach conclusions and assemble majorities.

What happens at the Court is both genuinely political and genuinely principled.  Values matter, as they do in the legislature, but the justices honor procedural constraints very different from those that apply in Congress.  They do not trade votes across cases, for example.  They also recognize that their role sometimes requires them to defer to other branches even when they disagree with what those branches have done.  At the end of the day, though, they often end up disagreeing along recognizably political lines.  For that reason, the appointments process—in the White House and in the Senate—needs to focus on nominees’ values, not just their professional credentials.