“Ask the Author”: Christopher Eisgruber and The Next Justice, Part II

This is Part II of our newest installment in the “Ask the Author” series; yesterday’s Part I is here. This edition features a conversation with Christopher Eisgruber about his new book, The Next Justice: Repairing the Supreme Court Appointments Process, which was released last week by Princeton University Press.

Professor Eisgruber is the Laurance S. Rockefeller Professor of Public Affairs in the Woodrow Wilson School and the University Center for Human Values at Princeton, where he also serves as the Provost. A former clerk to Justice Stevens, he is the author of Constitutional Self-Government and the coauthor of Religious Freedom and the Constitution. The conclusion of our conversation will appear tomorrow.

When discussing the role of judges, you write, “in federal courts [other than the Supreme Court], judging might sometimes feel like umpiring,” but that that at the Supreme Court the very nature of the cases “requires the justices to make politically controversial judgments.”  Why, then, does the view of the justice-as-umpire persist?  And, if the work of lower federal courts is so different from that of the High Court, how relevant is such lower court experience for a nominee?  And how reliable is it as an indicator of what will type of justice a lower court judge will be?

There are two big reasons why the myth persists.  One reason is that people rightly expect Supreme Court justices to be impartial in certain ways.  For example, justices ought to decide cases on the basis of principles, not on the basis of the identity of the parties.  Bush v. Gore was disturbing to many people because they worried that it violated this basic norm:  people thought that if the roles of the candidates had been reversed-if Bush had been challenging the Florida returns instead of Gore-the justices might have changed their positions.  Justices have no business favoring Bush over Gore or vice-versa, any more than a baseball umpire should favor the Red Sox over the Rockies when calling balls and strikes.

The second reason the myth persists is that we put a veil of secrecy over what happens in the Court.  When journalists pull back the veil, they often focus on the most salacious details, emphasizing personalities rather than processes and values.  As a result, ordinary people, including most lawyers, have very little information about how impartiality and political values really mix in the Court’s work.  One of the things I do in The Next Justice is to draw on my own experience as a law clerk to describe what the Court actually does.  For example, I recount how Justice Stevens refused, on grounds of principle, to lobby Justice O’Connor for her vote in an abortion case.  That’s exactly the opposite of the sort of story you find in The Brethren or The Nine, but it is much more representative of how the Court usually works.

As for lower court experience, it is helpful-but so are lots of other kinds of experience.  The idea that circuit court experience is indispensable for a Supreme Court justice is a recent development in our history, and not a healthy one.  In fact, the principal role of such experience now is to produce a track record that assists presidents in selecting nominees who exactly fit their ideological preferences.  During the Reagan administration, justice department lawyers scoured the records of circuit court judges looking for conservative purists.  They favored Robert Bork over Anthony Kennedy, for example, because Bork had an almost perfect conservative record, and they feared that Kennedy might be “soft” on gay rights and abortion rights.  Eventually, they had to settle for Kennedy, and look what happened.

Turning to the Presidential role in the process, you advocate the “Schumer” standard for appointments, where a President has a right to appoint judges with moderate views from his own party but not extreme ones.  How is a Senator supposed to sniff out this difference?  You also slightly qualify this standard by saying that certain times (like the Civil War era or the Great Depression) may call for the President to attempt an extreme makeover of the Court.  How are we to know when we are living in extreme or moderate times?

Moderate justices share three characteristics:  political values that put them at or near the ideological center; a lively sense of the limits of judicial power; and an open-mindedness to novel claims of political justice from disadvantaged persons and groups.  I don’t think that it is particularly difficult for presidents or senators to identify moderate nominees.  Indeed, when presidents have nominated moderates, the Senate has generally recognized them as such and confirmed them.  But one good test is to ask whether a nominee has occasionally departed from the “party line”:  is the nominee an ideological purist, or has he or she occasionally taken positions at odds with the ideology of the president who made the nomination?

You’re right that I favor moderate nominees, but that I qualify my recommendation with various exceptions, including the one you mention.  There are no mechanical criteria for saying when these exceptions apply.  What matters is that we have a process capable of focusing on the right questions: Is this nominee a moderate, or an ideological purist?  If an ideological purist, are there good grounds for confirming the nomination anyway?  People will disagree about how to answer the latter question.  But if we continue to pretend that justices could be mere umpires, we will never even reach the relevant questions.

Turning to the confirmation process itself, you believe there is a place for confirmation hearings, but that the bulk of decision-making should occur “on the basis of [the nominee’s] record and reputation.”  Can you talk about how that differs from the process as it stands now?  How might the Alito or Roberts or nominations have gone using this method?  And can you talk about the types of questions you suggest senators should ask in this new environment?

Maybe the best way to answer is with an example from the Roberts hearings.  In his opening remarks, Senator Schumer observed that the nominee had “been embraced by some of the most radical ideologues in America, like the leader of Operation Rescue.”  He advised Roberts that “the burden, sir, is on you … to help us determine whether you’ll be a conservative but mainstream chief justice or an ideologue.”  That strikes me as just right.  But Schumer also told Roberts that “[a]s far as your own views go … we have only scratched the surface.  In a sense, we have seen 10 percent of you-just the visible tip of the iceberg, not the 90 percent that is still submerged.  And we all know that it is the ice beneath the surface that can sink the ship.”

In fact, with Roberts and most other nominees, Senators have access to far more than 10 percent of the information they need to assess a nominee.  Almost everything that a president knows is also known to the Senate.  If senators indulge the idea that the nominee’s views are largely unknown, they put themselves in an impossible position.  To justify a ‘no’ vote, they have to elicit a confession or a smoking gun during the hearings.  They ask very sophisticated questions designed to compel the nominee to describe his or her political values, but, as Roberts and Alito showed, well-coached nominees have no trouble deflecting these questions.

The Senate should, as Schumer recommended, put the burden of proof on the nominee.  Instead of cross-examining the nominee with true-false questions aimed at forcing the nominee to reveal his or her views, senators should ask open-ended essay-type questions that give the nominee an opportunity to rebut the impressions they have formed on the basis of his or her record and reputation.  Of course, nominees can deflect these questions, too.  For example, I recommend that senators ask nominees to identify some clear examples of times in their public lives when they have crossed party lines or broken ideological ranks.  Senators Durbin, Kohl, and Schumer all asked Roberts a version of this question, and he politely demurred.  That was his right, but his refusal to answer, together with his record, provided a perfectly legitimate ground for the Senate to reject his nomination.