The Next Justice: Repairing the Supreme Court Appointments Process.

AuthorLiu, Frederick
PositionBook review

The Next Justice: Repairing the Supreme Court Appointments Process

BY CHRISTOPHER L. EISGRUBER

NEW JERSEY: PRINCETON UNIVERSITY PRESS, 2007. PP. 239. $27.95

What distinguishes judicial liberals from judicial conservatives? The answer, argues Christopher Eisgruber in The Next Justice: Repairing the Supreme Court Appointments Process, is the same as what distinguishes liberals from conservatives generally: their "political and moral values." (1) According to Eisgruber, a self-described liberal, (2) the line dividing liberals and conservatives is especially evident on the Supreme Court. Because the Court's docket "consists almost exclusively of hard cases where the law's meaning is genuinely in doubt," applying the law "will require the justices to make politically controversial judgments.... in a significant number of instances." (3) "When they make those judgments," writes Eisgruber, "they have no choice but to bring their values to bear on the issues in front of them." (4) Eisgruber thus argues that Senators should thoroughly examine a Supreme Court nominee's ideological convictions before voting to confirm the next Justice. (5)

Ask judicial liberals what distinguishes them from judicial conservatives, and they will likely agree that the difference is largely ideological. (6) Ask judicial conservatives what distinguishes them from judicial liberals, and they will likely disagree--vehemently. In their eyes, the difference is mainly methodological: while conservatives maintain that cases should be decided solely on the basis of neutral legal principles, (7) liberals deny that law and politics can (or should) always be kept separate.

Throughout his book, Eisgruber dismisses conservatives' emphasis on methodology as misguided and misleading. (8) But once the perspectives of both judicial liberals and judicial conservatives are taken seriously, the real divide between the two sides begins to emerge: what truly distinguishes judicial liberals from judicial conservatives is their views of the relative number of hard cases the Supreme Court hears. Whereas judicial conservatives believe that there are extremely few hard cases--cases in which traditional legal authorities fail to yield a single right answer, leaving a gap to be filled by moral reasoning (9)--judicial liberals believe that there are very many. The sooner both sides realize this, the sooner they can stop talking past each other--and the sooner the Supreme Court appointments process can be repaired.

  1. EISGRUBER'S NEXT JUSTICE: NEITHER UMPIRE NOR IDEOLOGUE

    Eisgruber begins The Next Justice with an examination of the judicial role. "To decide what kinds of justices we want, and how to get them," Eisgruber explains, "we first need to understand exactly what justices do." (10)

    One view, embraced by judicial conservatives and articulated by John Roberts at his confirmation hearing, (11) "regards Supreme Court justices as neutral umpires who never invoke anything other than their apolitical, technical expertise about legal rules." (12) Dismissing this view as naive, Eisgruber contends that "Justices cannot be mere umpires" because, "[u]nlike the rules of baseball, [the Constitution] speaks in abstract phrases, and nobody can interpret those phrases without making politically controversial judgments." (13) Not even originalists can avoid making such judgments, he claims, because "the framers' intentions are no less ambiguous than the constitutional text itself." (14) According to Eisgruber, Justices necessarily rely on their "ideological values"--"political and moral values of the sort that distinguish liberals from conservatives"--when interpreting the Constitution (15)Judicial conservatives who suggest otherwise, Eisgruber asserts, are simply being disingenuous: given that "originalist accounts of constitutional meanings" merely "reflect the ideological values of the judges who render them," "[i]t is hard to believe that the analysis is being driven by a disinterested analysis of historical intentions, rather than by the judges' values." (16)

    Another view, identified with Senator Charles Schumer, (17) regards Justices "as ideologues who decide cases on the basis of a political agenda." (18) Eisgruber rejects this account as too cynical: "Although justices must make politically controversial judgments, their decision making differs sharply from that of legislators and other officeholders." (19) For one thing, he argues, "justices share a strong commitment to impartiality," which "prohibits them from favoring certain persons, groups, constituencies, or causes over others." (20) For another, he claims, Justices share a deep commitment to certain "procedural values"--"values that pertain to the jurisdiction, responsibility, or operation of institutions, including courts." (21) According to Eisgruber, these commitments allow Justices to transcend "traditional ideological cleavages" and "reach unanimous decisions in politically charged cases." (22)

    Having concluded that Justices are "neither umpires nor ideologues," (23) Eisgruber argues that their role is best understood in terms of the ideological and procedural values they enforce. (24) He thus urges Senators to evaluate nominees on the basis of their values (25) instead of their "methodological positions about, for example, how much weight to give to precedent, or whether to respect the framers' intentions." (26) With procedural values cutting across political lines, (27) Eisgruber assumes that the difference between Democratic nominees and Republican nominees will be ideological, as he claims it has always been. (28) He recognizes, however, that Senators "cannot simply insist on nominees who share their own views." (29) He therefore concludes that, while Senators should reserve the right to reject...

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