Christopher L. Eisgruber


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

Cover Interview of July 22, 2009


Some people believe that the Supreme Court appointments process boils down to raw power:  powerful presidents nominate staunch ideological allies, and weak ones choose compromise candidates.  No doubt about it:  power does matter.  For example, when the president’s own party controls the Senate, roughly 89% of Supreme Court nominees win confirmation.  When the opposing party has a Senate majority, less than 70% of nominees make it to the Court.  Other similar factors also lower a nominee’s odds of success—for example, nominees selected by lame-duck presidents do worse than nominees chosen by newly elected presidents.

Power is not the whole story, though.  Ideas matter, too.  When the Senate is equally divided, and a nominee’s fate is uncertain, moderate senators must choose how to vote.  Their decisions will determine whether a nominee gets confirmed by a narrow margin, as Clarence Thomas was, or rejected, as happened to Robert Bork.

Ideas also matter to presidential choices.  Dwight Eisenhower thought that he should appoint ideological moderates, whereas Richard Nixon wanted staunch conservatives.  George W. Bush pushed the ideological envelope with John Roberts and Sam Alito, both of whom came with impeccable conservative credentials.  Barack Obama, by contrast, selected a moderate liberal, Sonia Sotomayor, even though his party enjoyed an overwhelming advantage in the Senate.

Ideas about the Court influence appointments in other ways, too.  For example, presidents and senators have increasingly viewed federal judicial experience as an essential credential for Supreme Court nominees.  When Sam Alito replaced Sandra Day O’Connor, the Court for the first time in American history consisted of nine justices all of whom were sitting federal court judges at the time of their appointment.  And, also for the first time in American history, it contained nobody who had ever held elected office.  This change was not forced by power relationships; it results from the way we think about the Court and the appointments process.

Yet, when people think about repairing the appointments process, they usually focus on one narrow issue—how to change the confirmation hearings.  No book about the appointments process can ignore the hearings, and The Next Justice makes suggestions about how to improve them.  It would be wonderful if the hearings could move beyond artificial exchanges about umpiring and fidelity to law.  We should remember, though, that the hearings are only the most visible part of the appointments process, not the most important part.  The keys to the process are choices that presidents and senators make, often behind closed doors but under the influence of public debate.

With the Supreme Court sharply divided about a wide range of constitutional issues, much will be at stake in the next few nominations.  Who gets nominated, and who gets confirmed, will depend on many things, including our view of the Supreme Court’s role.  Enriching that view and exposing its connection to the appointments process are the primary goals of The Next Justice.

© 2009 Christopher Eisgruber