Is There a Better Way?
Melone, Albert P., Judicature
Is there a better way? by Albert P. Melone The Next justice: Repairing the Supreme Court Appointments Process, by Christopher L. Eisgruber. Princeton University Press. 2007. 252 pages. $27.95
Few if any serious persons are satisfied with the current practices associated with the nomination and confirmation of United States Supreme Court justices. Nominees are subjected to intense public scrutiny and questioning from U.S. senators. Yet this process has been unsuccessful in exposing what senators strongly suspect about the ideological proclivities of presidential nominees. Presidents find themselves in serious nomination and confirmation battles with members of the other political party and sometimes they are at odds with independent-minded senators of their own party. Interest groups complicate matters by placing demands upon presidents and senators to support or oppose particular nominees as rewards for past and future political backing.
Christopher L. Eisgruber, a former law clerk to U.S. Court of Appeals Judge Patrick E. Higginbotham and Supreme Court Justice John Paul Stevens, and now provost and professor of public affairs at Princeton University, purports to show us a better way. In 11 highly readable chapters, Eisgruber describes the nature of Supreme Court decision making along with what Americans should look for in future nominees. He then describes the nomination and confirmation processes and how these might be improved. Finally, he makes the case for selecting moderates instead of extreme liberals or conservatives for the high court. Each element of this thoughtful book raises significant arguments worthy of exploration and serious consideration.
Eisgruber challenges the myth that justices only find the law and do not make it. He skillfully disabuses readers of the misconceptions summed up in nominee John Roberts' claim that judges, like umpires, merely call balls and strikes. Eisgruber in particular subjects the notion of interpretivism and originalism to a sound intellectual thrashing. Readers who want a clear statement of the various problems associated with originalism and with the jurisprudence of Antonin Scalia need not look any further. Eisgruber makes a strong case that given the nature of the written constitution with its abstractions and statements of principles justices have little alternative but to exercise their discretion. Inescapably, ideology is a guiding factor in the fulfillment of their policy-making functions. However, unlike legislators or elected executives, for justices it does not matter whose ox is being gored. Justices are impartial toward the litigants but not about the great constitutional issues of the day.
Eisgruber bravely confronts the inconvenient contrary evidence manifest in the seemingly partisan vote in Bush v. Gore. Many readers will be unpersuaded by his claim that it is doubtful the justices "consciously thought about aiding their preferred candidate" (p.65). Nonetheless, the author's main point is well taken. This infamous presidential-deciding opinion may very well be an aberration. Regardless of how we assess the significance of Bush v. Gore, processes and procedures limit the judicial role in important ways. Consequently, justices are not in a position to vote their ideological wishes without restraints-norms inherent in the judicial role limit their discretion. Judicial moderates, according to Eisgruber, are more likely than extreme liberals and doctrinaire conservatives to honor those restraints because they are more likely to temper their own conceptions of justice in deference to the considered opinions of others. The pertinent question is not whether justices ought to make politically charged decisions. The proper query directed at nominees is how they will make such decisions. For what purposes and under what circumstances should they employ judicial review?
How do we know a moderate jurist when we see one? …