The Next Justice: Repairing the Supreme Court Appointments Process

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Overview

"What an important book this is! With the next president likely to have at least one Supreme Court vacancy to fill--an appointment that could make a dramatic difference in the nation's direction for years to come--Christopher Eisgruber lays out a clear set of principles not only for the White House selection process but, more importantly, for Senate confirmation. And Eisgruber's focus is not just on the immediate policy impact; his goal is nothing less than to preserve the Constitution."--Mickey Edwards, vice president of The Aspen Institute

"In this sensible and deeply considered book, Christopher Eisgruber tackles one of the most vexatious problems in contemporary American constitutionalism: what to do about the ever more perilous enterprise of Supreme Court nominations. Carefully avoiding a breathless, sensationalist approach to explaining how the Court really works, The Next Justice provides a measured account of how the modern Court has operated and the interpretive doctrines the justices apply. Eisgruber is deeply respectful of the Court, but his expectations of the Senate's role in judicial confirmations also run high. To everyone who worries that the nomination process has become a perverse caricature of what it should be, this book offers a thoughtful and compelling set of proposals for how it might yet be reformed."--Jack Rakove, Stanford University

"A superb and provocative treatment of a complex topic. Everyone interested in the future of the Supreme Court, and the nature of constitutional law, will benefit from Eisgruber's careful and exceptionally illuminating analysis."--Cass R. Sunstein, University of Chicago Law School

"After so many years of speaking past one another on the issue, members of the public now have, in The Next Justice, a new common language with which to discuss the qualifications of Supreme Court nominees. Unapologetically written with a clarity and transparency appropriate for the most general audience, it is a book from which everyone--including law professors, legislators, and judges themselves--can learn. With it, Christopher Eisgruber has established himself, along with giants like Ronald Dworkin and Cass Sunstein, among the important public intellectuals of our time."--Rebecca L. Brown, Vanderbilt Law School

"Eisgruber's book is vital. The process by which the public and the Senate currently consider Supreme Court nominees is broken. A fresh view is badly needed. The Next Justice provides this, and it has the potential to serve as a handbook to the next confirmation hearing. For all its erudition, the book is clear, brief, and well designed for nonlawyers. It doesn't go too far to predict that the next nominee will be asked many, if not all, of the questions that Eisgruber proposes."--Martin S. Flaherty, Fordham Law School

"Clearly written and containing many original ideas, this is an excellent book that I have no doubt will be widely read. I particularly enjoyed the chapter on the extent of unanimous Supreme Court rulings and what this means for understanding the role of ideology on the court."--Erwin Chemerinsky, Duke Law School

"The best short, one-volume, incisive account of what the Supreme Court actually does."--Linda Greenhouse, Knight Distinguished Journalist-in-Residence and Joseph M. Goldstein Senior Fellow in Law, Yale Law School

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  • Christopher L. Eisgruber
    Christopher L. Eisgruber  

Editorial Reviews

The New Yorker
What do we want in a Supreme Court Justice, and how should we get it? Eisgruber, a former Supreme Court clerk, argues that the first step is to do away with the idea that the process can or should be entirely divorced from politics...Eisgruber's practical recommendations for fixing the confirmation process boil down to having senators stand up for themselves during hearings, unafraid to say no, but his larger point is that, in pursuit of justice, moderation is the paramount virtue.
The Federal Lawyer
The Next Justice contains many interesting descriptions of the Court, including its inner workings, the role of the law clerks, and the process of decision-making. Eisgruber has a great deal of respect for the Supreme Court as an institution, and he would like to have a confirmation process worthy of the Court. So would we all.
— Charles S. Doskow
Newark Star-Ledger
The focus of the book...is not on jurisprudence, but on the inadequacy of senatorial confirmation hearings.... Eisgruber recommends that the Senate correct the confirmation process by following the example of the executive branch. Thus, the Senate should 'rely less on hearings and more on the kinds of evidence that presidents use': writings, speeches, and, for nominees who are judges, opinions. He continues that the Senate should not rely on futile inquiries about a nominee's commitment to strict construction of statutes or finding the original intent of the founding fathers. Instead, he suggests that the Senate ask nominees about their interpretation of abstract language in the U.S. Constitution...[This] is a thinking person's book. Anyone concerned about the future of the U.S. Supreme Court, however, will find it fascinating. Elegantly written, closely reasoned, and carefully researched, the book is well worth the reader's thought and time. Whether or not you agree with Eisgruber's suggestions and conclusions, The Next Justice remains stimulating, even provocative.
— Stewart Pollock
Journal of Supreme Court History
[Eisgruber's] volume is a sensible, illuminating, and sometimes insightful look at the confirmation process. . . . For a subject that can be emotionally charged, the author has provided an account that is eminently readable and informative, one that is entirely manageable and digestible in an evening.
— Donald Grier Stephenson, Jr.
Newark Star Ledger

The focus of the book...is not on jurisprudence, but on the inadequacy of senatorial confirmation hearings.... Eisgruber recommends that the Senate correct the confirmation process by following the example of the executive branch. Thus, the Senate should 'rely less on hearings and more on the kinds of evidence that presidents use': writings, speeches, and, for nominees who are judges, opinions. He continues that the Senate should not rely on futile inquiries about a nominee's commitment to strict construction of statutes or finding the original intent of the founding fathers. Instead, he suggests that the Senate ask nominees about their interpretation of abstract language in the U.S. Constitution...[This] is a thinking person's book. Anyone concerned about the future of the U.S. Supreme Court, however, will find it fascinating. Elegantly written, closely reasoned, and carefully researched, the book is well worth the reader's thought and time. Whether or not you agree with Eisgruber's suggestions and conclusions, The Next Justice remains stimulating, even provocative.
— Stewart Pollock
Newark Star Ledger - Stewart Pollock
The focus of the book...is not on jurisprudence, but on the inadequacy of senatorial confirmation hearings.... Eisgruber recommends that the Senate correct the confirmation process by following the example of the executive branch. Thus, the Senate should 'rely less on hearings and more on the kinds of evidence that presidents use': writings, speeches, and, for nominees who are judges, opinions. He continues that the Senate should not rely on futile inquiries about a nominee's commitment to strict construction of statutes or finding the original intent of the founding fathers. Instead, he suggests that the Senate ask nominees about their interpretation of abstract language in the U.S. Constitution...[This] is a thinking person's book. Anyone concerned about the future of the U.S. Supreme Court, however, will find it fascinating. Elegantly written, closely reasoned, and carefully researched, the book is well worth the reader's thought and time. Whether or not you agree with Eisgruber's suggestions and conclusions, The Next Justice remains stimulating, even provocative.
Foreword Magazine - Deirdre Sinnott
Eisgruber's analysis is essential reading for both lawmakers and the public.
New York Sun - Daniel Sullivan
The appointment process could gain a lot from Mr. Eisgruber's proposal...The Next Justice makes a start, in the calm before the circus of the next nomination, toward the debate we must have if we are to overcome the 'confusion'.
Washington Lawyer - Ronald Goldfarb
The Next Justice should be a required reading for all the members of the Senate Judiciary Committee, so insightful and informative is Eisgruber's analysis of this profoundly important subject. For decades the nation has been wrestling with the question of how to avoid cyclical partisan warfare over Supreme Court appointments. This book goes a long way toward defining sensible, balanced criteria for doing so.
The Federal Lawyer - Charles S. Doskow
The Next Justice contains many interesting descriptions of the Court, including its inner workings, the role of the law clerks, and the process of decision-making. Eisgruber has a great deal of respect for the Supreme Court as an institution, and he would like to have a confirmation process worthy of the Court. So would we all.
Trial - E. Drew Britcher
While readers may disagree with how Eisgruber defines the term 'moderate justice,' no one who has even a passing interest in the composition of the Court should find Eisgruber's book anything less than thought-provoking. In fact, it should be required reading for any college constitutional law class and for first-year law students.
Australian Law Journal - Michael Kirby
As Australian governments venture tentatively towards greater transparency, Eisgruber's text is a useful reminder of the dangers they need to avoid. In the end, he suggests that reforms depend upon an appeal to the political process to lift its game.
Journal of Supreme Court History - Donald Grier Stephenson
[Eisgruber's] volume is a sensible, illuminating, and sometimes insightful look at the confirmation process. . . . For a subject that can be emotionally charged, the author has provided an account that is eminently readable and informative, one that is entirely manageable and digestible in an evening.
From the Publisher

"What do we want in a Supreme Court Justice, and how should we get it? Eisgruber, a former Supreme Court clerk, argues that the first step is to do away with the idea that the process can or should be entirely divorced from politics...Eisgruber's practical recommendations for fixing the confirmation process boil down to having senators stand up for themselves during hearings, unafraid to say no, but his larger point is that, in pursuit of justice, moderation is the paramount virtue."--The New Yorker

"[A] concise and lucid case for a more thoughtful and workable process."--Publishers Weekly

"The focus of the book...is not on jurisprudence, but on the inadequacy of senatorial confirmation hearings.... Eisgruber recommends that the Senate correct the confirmation process by following the example of the executive branch. Thus, the Senate should 'rely less on hearings and more on the kinds of evidence that presidents use': writings, speeches, and, for nominees who are judges, opinions. He continues that the Senate should not rely on futile inquiries about a nominee's commitment to strict construction of statutes or finding the original intent of the founding fathers. Instead, he suggests that the Senate ask nominees about their interpretation of abstract language in the U.S. Constitution...[This] is a thinking person's book. Anyone concerned about the future of the U.S. Supreme Court, however, will find it fascinating. Elegantly written, closely reasoned, and carefully researched, the book is well worth the reader's thought and time. Whether or not you agree with Eisgruber's suggestions and conclusions, The Next Justice remains stimulating, even provocative."--Stewart Pollock, Newark Star Ledger

"Eisgruber's analysis is essential reading for both lawmakers and the public."--Deirdre Sinnott, Foreword Magazine

"The appointment process could gain a lot from Mr. Eisgruber's proposal...The Next Justice makes a start, in the calm before the circus of the next nomination, toward the debate we must have if we are to overcome the 'confusion'."--Daniel Sullivan, New York Sun

"The Next Justice should be a required reading for all the members of the Senate Judiciary Committee, so insightful and informative is Eisgruber's analysis of this profoundly important subject. For decades the nation has been wrestling with the question of how to avoid cyclical partisan warfare over Supreme Court appointments. This book goes a long way toward defining sensible, balanced criteria for doing so."--Ronald Goldfarb, Washington Lawyer

"The Next Justice contains many interesting descriptions of the Court, including its inner workings, the role of the law clerks, and the process of decision-making. Eisgruber has a great deal of respect for the Supreme Court as an institution, and he would like to have a confirmation process worthy of the Court. So would we all."--Charles S. Doskow, The Federal Lawyer

"While readers may disagree with how Eisgruber defines the term 'moderate justice,' no one who has even a passing interest in the composition of the Court should find Eisgruber's book anything less than thought-provoking. In fact, it should be required reading for any college constitutional law class and for first-year law students."--E. Drew Britcher, Trial

"As Australian governments venture tentatively towards greater transparency, Eisgruber's text is a useful reminder of the dangers they need to avoid. In the end, he suggests that reforms depend upon an appeal to the political process to lift its game."--Michael Kirby, Australian Law Journal

"[Eisgruber's] volume is a sensible, illuminating, and sometimes insightful look at the confirmation process. . . . For a subject that can be emotionally charged, the author has provided an account that is eminently readable and informative, one that is entirely manageable and digestible in an evening."--Donald Grier Stephenson, Jr., Journal of Supreme Court History

Foreword Magazine
Eisgruber's analysis is essential reading for both lawmakers and the public.
— Deirdre Sinnott
New York Sun
The appointment process could gain a lot from Mr. Eisgruber's proposal...The Next Justice makes a start, in the calm before the circus of the next nomination, toward the debate we must have if we are to overcome the 'confusion'.
— Daniel Sullivan
Washington Lawyer
The Next Justice should be a required reading for all the members of the Senate Judiciary Committee, so insightful and informative is Eisgruber's analysis of this profoundly important subject. For decades the nation has been wrestling with the question of how to avoid cyclical partisan warfare over Supreme Court appointments. This book goes a long way toward defining sensible, balanced criteria for doing so.
— Ronald Goldfarb
Trial
While readers may disagree with how Eisgruber defines the term 'moderate justice,' no one who has even a passing interest in the composition of the Court should find Eisgruber's book anything less than thought-provoking. In fact, it should be required reading for any college constitutional law class and for first-year law students.
— E. Drew Britcher
Australian Law Journal
As Australian governments venture tentatively towards greater transparency, Eisgruber's text is a useful reminder of the dangers they need to avoid. In the end, he suggests that reforms depend upon an appeal to the political process to lift its game.
— Michael Kirby
Newark Star-Ledger
The focus of the book...is not on jurisprudence, but on the inadequacy of senatorial confirmation hearings.... Eisgruber recommends that the Senate correct the confirmation process by following the example of the executive branch. Thus, the Senate should 'rely less on hearings and more on the kinds of evidence that presidents use': writings, speeches, and, for nominees who are judges, opinions. He continues that the Senate should not rely on futile inquiries about a nominee's commitment to strict construction of statutes or finding the original intent of the founding fathers. Instead, he suggests that the Senate ask nominees about their interpretation of abstract language in the U.S. Constitution...[This] is a thinking person's book. Anyone concerned about the future of the U.S. Supreme Court, however, will find it fascinating. Elegantly written, closely reasoned, and carefully researched, the book is well worth the reader's thought and time. Whether or not you agree with Eisgruber's suggestions and conclusions, The Next Justice remains stimulating, even provocative.
— Stewart Pollock
New York Sun
The appointment process could gain a lot from Mr. Eisgruber's proposal...The Next Justice makes a start, in the calm before the circus of the next nomination, toward the debate we must have if we are to overcome the 'confusion'.
— Daniel Sullivan
The Federal Lawyer
The Next Justice contains many interesting descriptions of the Court, including its inner workings, the role of the law clerks, and the process of decision-making. Eisgruber has a great deal of respect for the Supreme Court as an institution, and he would like to have a confirmation process worthy of the Court. So would we all.
— Charles S. Doskow
Washington Lawyer
The Next Justice should be a required reading for all the members of the Senate Judiciary Committee, so insightful and informative is Eisgruber's analysis of this profoundly important subject. For decades the nation has been wrestling with the question of how to avoid cyclical partisan warfare over Supreme Court appointments. This book goes a long way toward defining sensible, balanced criteria for doing so.
— Ronald Goldfarb
Newark Star-Ledger
The focus of the book...is not on jurisprudence, but on the inadequacy of senatorial confirmation hearings.... Eisgruber recommends that the Senate correct the confirmation process by following the example of the executive branch. Thus, the Senate should 'rely less on hearings and more on the kinds of evidence that presidents use': writings, speeches, and, for nominees who are judges, opinions. He continues that the Senate should not rely on futile inquiries about a nominee's commitment to strict construction of statutes or finding the original intent of the founding fathers. Instead, he suggests that the Senate ask nominees about their interpretation of abstract language in the U.S. Constitution...[This] is a thinking person's book. Anyone concerned about the future of the U.S. Supreme Court, however, will find it fascinating. Elegantly written, closely reasoned, and carefully researched, the book is well worth the reader's thought and time. Whether or not you agree with Eisgruber's suggestions and conclusions, The Next Justice remains stimulating, even provocative.
— Stewart Pollock
Library Journal

In this brief book, Eisgruber (provost & public affairs, Princeton Univ.; Constitutional Self-Government), a former Supreme Court clerk to Justice John Paul Stevens, explains the defects of the Supreme Court appointments process, discussing the role of each government branch in the process of selecting a Supreme Court justice. He examines several Supreme Court confirmations, including the most recent ones. Each chapter tackles a different aspect of the confirmation process, from the nomination by the President to the partisan politics in the confirmation hearings. Eisgruber argues that the process inappropriately sidesteps controversy, even as the justices cannot avoid controversy in their work. In his first chapter, for instance, Eisgruber repeats an exchange during the Samuel Alito hearings in which New York Sen. Charles Schumer questioned Alito on abortion. Although Alito has said that abortion rights are not constitutionally protected, he refused to answer when Schumer raised the issue. The author believes that such impasses are harmful to the Court and to the justice system. Nominees should talk more generally about the judiciary and the role of judges instead. In his final chapter, Eisgruber proposes solutions to the problems of these hearings. Academic libraries will find this book useful; public libraries may want more general material.
—Becky Kennedy

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Product Details

  • ISBN-13: 9780691143521
  • Publisher: Princeton University Press
  • Publication date: 5/18/2009
  • Pages: 272
  • Product dimensions: 5.70 (w) x 8.90 (h) x 0.60 (d)

Meet the Author


Christopher L. Eisgruber is provost and Laurance S. Rockefeller Professor of Public Affairs at Princeton University. He is the coauthor of "Religious Freedom and the Constitution" and the author of "Constitutional Self-Government". He is a former New York University law professor and a former clerk for Supreme Court Justice John Paul Stevens and U.S. Court of Appeals Judge Patrick E. Higginbotham.
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Table of Contents


Preface ix
Chapter 1. A Broken Process in Partisan Times 1
Chapter 2: Why Judges Cannot Avoid Political Controversy 17
Chapter 3: The Incoherence of Judicial Restraint 31
Chapter 4: Politics at the Court 51
Chapter 5: Why Judges Sometimes Agree When Politicians Cannot 73
Chapter 6: Judicial Philosophies and Why They Matter 98
Chapter 7: How Presidents Have Raised the Stakes 124
Chapter 8: Should the Senate Defer to the President? 144
Chapter 9: How to Change the Hearings 164
Chapter 10: What Kinds of Justices Should We Want? 178
C
hapter 11: The Path Forward 186 Notes 193
Index 225
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