The Next Justice: Repairing the Supreme Court Appointments Process

"With President Bush's recent Conservative appointments to the Supreme Court shifting the Court perceptibly to the right and the retirements of several liberal justices looming, the appointment process for the next justice promises to be a partisan and bruising affair. And, according to Christopher L. Eisgruber-former Supreme Court clerk and Rockefeller Professor of Public Affairs at Princeton University-without a radical change in Senate Confirmation Hearings, the process will continually fail to provide solid reasons to confirm or reject a the nominee. Eisgruber argues that Justices have their own judicial philosophy and that Senators have the right to reject a nominee if they find the nominee's philosophy objectionable. That said, he also argues contends that the current exchange between nominees and Senators regarding often centering on how nominees might rule on specific controversial issues , is ill conceived anddamages the Court damaging to the Court. Eisgruber offersOffering a different approach to the self-indulgent and demonstrably futile examinations that Senators currently direct at nominees, an Eisengruber underscores this new methodapproach highlighted by with well-designedin-depth questions constructed to reach address nominees' fundamental approach to Constitutional law. Unfortunately, other than the growing consensus that the confirmation system is broken, Eisgruber offers no reason why the decision-makers he hopes to influence will abandon their deeply ingrained partisanship. Hopeful readersNevertheless, readers will side with Eisgruber , however, and applaud his concise and lucid case for a more thoughtful and workable process." Publishers Weekly (Copyright Reed Business Information, Inc.)

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.

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