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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. In The 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 Justice provides a welcome exit from the uninformative political theater of the current appointments process.
"[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
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.
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
hapter 11: The Path Forward 186 Notes 193