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

This is Part I of our newest installment in the “Ask the Author” series. 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. Parts II and III of our conversation will appear tomorrow and Friday, respectively.

First, what prompted you to write this book? Did you have this topic in mind before the Roberts and Alito hearings, or did what you saw there spur you into action?

I wrote the book because I was disappointed with the quality of the Roberts and Alito hearings. The nation learned almost nothing about the nominees’ constitutional views. Roberts, for example, characterized himself as a mere umpire whose values and political convictions were irrelevant to his duties as a judge. Not surprisingly, when he reached the Court, he-like every justice before him-turned out to be something much different from an umpire. He and Alito have led the Court in a new, conservative direction. With the Court’s future hanging in the balance, Americans need a better public language, and a better process, for arguing about what kinds of justices they want on the Court.

You talk about how your project really has two components: you have to explain the work the justices actually do in order to explain what makes a good justice, and how we find that out during the confirmation process. Can you talk a bit about this connection? Do you think that most people involved – the President, Senators, and the citizens – can really grasp this link, especially if they are not lawyers?

Sure. It’s really a basic point that should be familiar to anyone who has ever had to hire an employee: if you want to find a good person to fill a job, you first have to decide what skills the job requires. For example, if being a good Supreme Court justice requires political judgment, then you’ll want to find nominees who have sound judgment. If it requires only technical legal ability, and nothing else, then you don’t need to worry about judgment or values at all.

I think the public gets this connection already. What needs work is our understanding of what justices actually do. It’s interesting in this respect to contrast the confirmation hearings for Michael Mukasey with those for John Roberts and Sam Alito. The Mukasey hearings featured tough questions for the nominee and tough choices for the senators. For example, reasonable people will disagree about whether Mukasey should have been more forthcoming in response to questions about water-boarding and torture. But everybody understood what an Attorney General does. If Mukasey had said, “Look, I’m just going to be a neutral umpire, so my political views don’t matter at all,” he would have been laughed out of the room.

History and current events both teach us that Supreme Court justices’ political values matter, too. We all know that some justices are liberal and some are conservative. But nominees to the Supreme Court routinely get away with claiming that they will be umpires, or that their values are irrelevant. That produces a surreal, disingenuous kind of discussion.

Of the discussion in the media that occurs regarding judges, you say that “One view regards Supreme Court justices as neutral umpires who never invoked anything other than their apolitical, technical expertise about legal rules, while a second view treats them as ideologues who decide cases on the basis of a political agenda.” You argue that the truth is more nuanced. Can you talk a little bit how these extremes have shaped the debate at confirmation hearings? Do you see the more nuanced, complex view emerging any time soon? What might spur such a change?

During the Roberts and Alito hearings, the extremes showed up in two kinds of questions. One kind came from conservative senators sympathetic to the nominations, who asked Roberts and Alito whether they would exercise judicial restraint and construe the Constitution as it was written. Of course they would-but the Constitution as it is written demands that justices make political judgments! The other kind came from liberals skeptical about the nominations, who asked all sorts of questions that were designed, ultimately, to try to figure out what the nominees thought about abortion. Roberts and Alito dodged these questions without breaking a sweat.

Neither of these blunt approaches is satisfactory. Senators and citizens should instead focus on what the nominee thinks judicial review is good for: in other words, they should investigate why and when the nominee would believe that it is desirable to substitute his or her own controversial judgments about constitutional meaning for those of elected officials. Every justice to serve on the Court has been willing to defer to legislatures about some issues but not others. That pattern of selective deference is what defines a judicial philosophy. Such a philosophy rests on political judgments, but it’s not the same thing as a simple liberal or conservative political ideology.

As for what might spur a change, one might occur because of the mismatch between what Roberts and Alito said at their hearings and what they have since done on the Court. They wrapped themselves in the mantle of political neutrality in their hearings, but few people will regard them as neutrals after last term’s decisions. The door is open for senators to demand a more transparent conversation about what nominees believe.