The Next Justice: Repairing the Supreme Court Appointments Process

The Next Justice: Repairing the Supreme Court Appointments Process

The Next Justice: Repairing the Supreme Court Appointments Process

The Next Justice: Repairing the Supreme Court Appointments Process


The Supreme Court appointments process is broken, and the timing couldn't be worse--for liberals or conservatives. The Court is just one more solid conservative justice away from an ideological sea change--a hard-right turn on an array of issues that affect every American, from abortion to environmental protection. But neither those who look at this prospect with pleasure nor those who view it with horror will be able to make informed judgments about the next nominee to the Court--unless the appointments process is fixed now. In The Next Justice, Christopher Eisgruber boldly proposes a way to do just that. He describes a new and better manner of deliberating about who should serve on the Court--an approach that puts the burden on nominees to show that their judicial philosophies and politics are acceptable to senators and citizens alike. And he makes a new case for the virtue of judicial moderates.

Long on partisan rancor and short on serious discussion, today's appointments process reveals little about what kind of judge a nominee might make. Eisgruber argues that the solution is to investigate how nominees would answer a basic question about the Court's role: When and why is it beneficial for judges to trump the decisions of elected officials? Through an examination of the politics and history of the Court, Eisgruber demonstrates that pursuing this question would reveal far more about nominees than do other tactics, such as investigating their views of specific precedents or the framers' intentions.

Written with great clarity and energy, The Next Justice provides a welcome exit from the uninformative political theater of the current appointments process.


American judges commonly hire recent law school graduates to work for a year or two as “clerks” who assist the judge with research and opinion writing. From 1988 to 1990, I was fortunate to clerk for two exceptional judges, Patrick E. Higginbotham and John Paul Stevens. Though both had been appointed by Republican presidents, their reputations in 1988 were very different. Higginbotham, whose chambers were in Dallas, Texas, was among the leading conservatives on the United States Circuit Courts of Appeal. He was widely reported to have been on the Reagan administration's short list of potential Supreme Court appointees. Stevens, who had been named to the Court by Gerald R. Ford, was regarded as a moderate, independent-minded liberal. Nowadays, he is often described as the Court's most liberal member.

Despite the real differences between the two judges, what impressed me most was what they had in common. Higginbotham and Stevens shared a deep respect for the craft and institutions of the law. Neither of them thought that law could be reduced to the mechanical application of rules; on the contrary, they acknowledged, in . . .

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