The Next Justice: Repairing the Supreme Court Appointments Process

By Christopher L. Eisgruber | Go to book overview

11
The Path Forward

The recent hearings on John Roberts and Samuel Alito, like the hearings on Ruth Bader Ginsburg and Stephen Breyer, were collegial and decorous. Roberts and Alito earned confirmation without having to endure the kinds of harsh allegations leveled against Robert Bork and Clarence Thomas. Some observers might take heart from that fact. On another view, though, the Roberts and Alito hearings were spectacular failures. That is not because Roberts and Alito were bad nominees. They are undoubtedly first-rate lawyers, and they appear to be thoughtful and decent men. It is possible that they will turn out to be very good justices. Even so, the hearings were a disappointment because Americans learned very little from them about what kind of justices Roberts and Alito would be.

Because nominees now routinely evade senators' questions about their jurisprudence, Americans have struggled for two decades to find a good way to discuss whether they should be confirmed. The purpose of this book has been to diagnose the source of this quandary and prescribe a solution to it. The diagnosis is simple. The problems with the confirmation process have their roots not in newly partisan

-186-

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The Next Justice: Repairing the Supreme Court Appointments Process
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Preface ix
  • 1: A Broken Process in Partisan Times 1
  • 2: Why Judges Cannot Avoid Political Controversy 17
  • 3: The Incoherence of Judicial Restraint 31
  • 4: Politics at the Court 51
  • 5: Why Judges Sometimes Agree When Politicians Cannot 73
  • 6: Judicial Philosophies and Why They Matter 98
  • 7: How Presidents Have Raised the Stakes 124
  • 8: Should the Senate Defer to the President? 144
  • 9: How to Change the Hearings 164
  • 10: What Kinds of Justices Should We Want? 178
  • 11: The Path Forward 186
  • Notes 193
  • Index 225
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