Student Daniel Sullivan Reviews 'The Next Justice: Repairing the Supreme Court Appointments Process'

Renovating the Judicial Nomination System
Daniel Sullivan
New York Sun
November 11, 2007

For decades, canny observers of American politics have noted the deleterious effects that our contentious pluralism can have on reasoned civic conversation. The difficulty is particularly acute for "[a]mong us there is a plurality of universes of discourse," as John Courtney Murray observed in 1960.

These universes are incommensurable. And when they clash, the issue of agreement or disagreement tends to become irrelevant. The immediate situation is simply one of confusion. One does not know what the other is talking about. One may distrust what the other is driving at. For this, too, is part of the problem - the disposition amid the confusion to disregard the immediate argument, as made, and to suspect its tendency, to wonder what the man who makes it is really driving at.

Readers of "The Next Justice: Repairing the Supreme Court Appointments Process" (Princeton University Press, 272 pages, $27.95), Christopher Eisgruber's modest proposal to reform the Supreme Court justice selection system, may perceive, at the bottom of the problem he seeks to solve, the dysfunction Murray summarized five decades ago: When discussing high court nominees we tend fundamentally to talk past each other.

In "The Next Justice," Mr. Eisgruber, provost and Laurance S. Rockefeller professor of public affairs at Princeton University, contends that the nomination and appointment process for justices to the nation's Supreme Court has degenerated into a vapid political farce, in which senators attempt to catch the nominee in embarrassing positions, while the nominee tries to say as little as possible. The diagnosis is convincing, if depressing. For this disease Mr. Eisgruber offers, laudably, a palpable cure: All the players - president, senators, nominees, and the public - should focus on the candidate's judicial philosophy, rather than on scandals, empty accusations of judicial activism, or banal perorations on judicial restraint.

Mr. Eisgruber does not just have in mind splashy scandals such as the Anita Hill allegations against Clarence Thomas. He also points to the superficial way the candidates and their evaluators talk about judicial philosophy - judicial activism is bad and judicial restraint is good. For Mr. Eisgruber, this reductionism lacks the nuance an understanding of the judicial function would provide.

Essentially, the book presents a procedural proposal. Senators have available most of the information about a candidate for the court - his paper trail and his reputation - on which the president bases his nomination. Before the hearings ever open, therefore, senators should be able to make a preliminary determination based on the nominee's judicial philosophy. If the Senators found the nominee too ideologically extreme, the burden would shift to the nominee to demonstrate at the hearings why his judicial philosophy is moderate and not extreme or rigid. By judicial philosophy, Mr. Eisgruber means a combination of the nominee's ideological values and his procedural values, and by the latter he means the nominee's ideas about deference to legislatures, process for the accused, and other procedural aspects of legal questions.

Mr. Eisgruber is right to focus on these twin sets of principles. As he points out, judges are neither apolitical umpires nor cravenly result-oriented politicians. Together, Mr. Eisgruber insists, the two intellectual components of ideology and procedural proclivity tell senators (and the rest of the country) how the nominee understands judicial review. That is to say, they indicate to us when he is likely to overrule legislatures and executive officers and when not. Since judicial review constitutes the essence of the American judge's function, for Mr. Eisgruber, a potential justice's understanding of it constitutes the essence of his judicial philosophy and the crucial consideration for confirmation purposes.

Of course, sometimes justices surprise even those who nominated them - conservatives often trot out Justices William Brennan, Earl Warren, and David Souter as examples. But this misses the point. Though it would be wrong to expect perfect accuracy of prediction, Mr. Eisgruber argues that nominators have been surprised in the past exactly because they did not properly evaluate the candidate's idea of judicial review or his judicial philosophy. This approach, however, only works if the candidate has an apparent judicial paper trail - something that ex-California Governor Earl Warren, for instance, lacked.

The appointment process could gain a lot from Mr. Eisgruber's proposal, particularly his effort to focus our attention on judicial philosophy, and his recommendation that senators shift the burden to the nominee to defend his record if they find it objectionable might make the hearings more meaningful. Most important, "The Next Justice" at least 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" Murray identified.

Unfortunately, even this modest start jumps the gun. Throughout his book, Mr. Eisgruber relies too much, without explaining it, on his notion of a moderate judicial philosophy. What makes a justice moderate is hardly uncontroversial, a fact which Mr. Eisgruber's list of "moderates" demonstrates: O'Connor, Breyer, and Ginsberg. It's unclear what Mr. Eisgruber means by moderation, or why he thinks it a desirable quality. Is it just the wishy-washy middle ground that Justice O'Connor's critics routinely attributed to her or something more principled? Could not extremely conservative or liberal candidates also be flexible and open-minded?

These are debatable questions, and by assuming his own answers Mr. Eisgruber leaves untreated the ultimate dysfunction - the clash between our incommensurable "universes of discourse." For buried in the frequent invocations of judicial "moderation" are all the disagreeable skeletons that haunt our public deliberations. We must exhume them and come to some social consensus on what to expect from judicial candidates before devising minor procedural solutions.

Mr. Sullivan is a writer and thirdyear law student at the University of Chicago.

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