Christopher L. Eisgruber


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

Cover Interview of July 21, 2009

The wide angle

Like many law professors, I began my career by doing two judicial clerkships—basically, serving as a staff lawyer for a federal judge.  I spent one year in the chambers of Patrick Higginbotham, a conservative appellate court judge in Texas who was on Ronald Reagan’s short list for the Supreme Court.  I spent the next year working for liberal Justice John Paul Stevens at the Supreme Court.

Though they disagreed about many constitutional issues, Judge Higginbotham and Justice Stevens shared a deep respect for legal craftsmanship.  They gave me an appreciation of how judging depended on both legal skill and moral values.

Unfortunately, that kind of understanding is strikingly absent from much public commentary about what judges do.  Popular accounts of judging instead fall into two overly simple categories.  One consists of prim fictions in which judges steadfastly abstain from any remotely political judgments.  John Roberts was spinning that kind of a story when he told the Senate that he would be nothing more than an umpire, calling balls and strikes.  So was Sonia Sotomayor when she told the senators that her judicial philosophy was “simple:  fidelity to the law.  The task of a judge is not to make law – it is to apply the law.”

The other account goes to the opposite extreme.  It describes crassly political justices, assisted by Machiavellian law clerks, who twist the law to reach politically motivated results.

Both accounts are profoundly misleading.  Judges, on and off the Supreme Court, do indeed recognize an obligation to apply the law, not make it.  The law, however, often speaks in abstractions.  The Constitution, for example, specifies that “no state shall deny to any person … the equal protection of the laws.”  What does “equal protection” mean?  Judges can get some help from precedent and history.  But, at the end of the day, they cannot help make a judgment about what it means for laws to protect people equally.  Liberal and conservative judges will reach different conclusions about that question.  They cannot avoid controversial choices by adhering to the law.  On the contrary, adhering requires choosing.

Presidents know that political values matter when choosing Supreme Court justices, and from John Adams onward presidents have paid attention to ideology when selecting nominees.  Over the last forty years, however, the stakes have risen.  The civil rights revolution of the 1960s made the Supreme Court a hot-button issue.  It has been at the center of the culture wars ever since.  Beginning with Richard Nixon, Republican presidents have placed an unprecedented emphasis on ideological purity when choosing nominees.  Jan Crawford Greenberg, for example, reports that George H. W. Bush passed over Ken Starr partly because some members of his administration doubted that Starr was conservative enough (they mistakenly thought David Souter was a better bet).

As presidents upped the ante, senators responded in kind.  Since 1968, seven nominees have failed to win confirmation.  In the preceding seventy-four years, the Senate rejected only one nominee.  Don’t blame the Senate, though:  the country is deeply divided about the roles that Constitution and the Court should play.  The confirmation battles of the last four decades reflect those divisions.

With the stakes so high, we need a better way to discuss what the Court does, whom the president should appoint, and when the Senate should confirm a nominee.  My goal in The Next Justice is to enhance our ability to address those questions.