“Ask the Author”: Christopher Eisgruber and The Next Justice, Part III

This is the final part of our newest installment in the “Ask the Author” series; Wednesday’s Part I is here, and yesterday’s Part II is here. This edition features a conversation with Christopher Eisgruber about his new book, The Next Justice: Repairing the Supreme Court Appointments Process, which was released last week by Princeton University Press.

Professor Eisgruber is the Laurance S. Rockefeller Professor of Public Affairs in the Woodrow Wilson School and the University Center for Human Values at Princeton, where he also serves as the Provost. A former clerk to Justice Stevens, he is the author of Constitutional Self-Government and the coauthor of Religious Freedom and the Constitution.

You discuss an incident in the hearings for Justice Brennan where, when pressed on an issue, “Brennan gave [Senator] McCarthy the commitment he wanted,” but it turned out to be “a commitment that Brennan ignored after his confirmation.” Is there something wrong with this? Is there a way this switch can be avoided, given that justices are not bound to what they say and receive life tenure (and shouldn’t be)? And, perhaps somewhat cynically, doesn’t every nominee know he has the option to just tell senators what they want to hear in order to get confirmed, without needing to follow them at all?

Brennan did nothing wrong by voting his conscience when he reached the Court. On the contrary, I offer that example to argue against conventional wisdom, which says that justices forfeit their independence if they answer senators’ questions about how they will decide cases. As Dean Elena Kagan has pointed out, judging is ultimately about cases; if nominees will not say anything about them, we can learn precious little about their judicial philosophies.

That said, I do think there are reasons for senators to avoid specific questions about controversial cases, such as, especially, Roe v. Wade. Such questions exaggerate the importance of particular issues by comparison to more general jurisprudential patterns. As I said earlier, senators and citizens ought to focus on the nominee’s views about the purpose of judicial review—about, in other words, when he or she believes that deference to other branches is desirable and when it is not, rather than on how he or she will decide one or two hot-button controversies. Asking nominees about specific cases also risks diminishing respect for the Court by leaving the impression that justices are deciding cases on the basis of their ‘campaign promises’ rather than on the basis of genuine convictions about the Constitution.

As for whether nominees can lie to the Senate: I suppose they can, but bald-faced lies have been rare in the confirmation process. Most nominees are ethical people who will try to be truthful, and those who don’t risk getting caught—the senators are, after all, savvy and experienced people.

The last five vacancies appear to have been filled by justices (Thomas, Ginsburg, Breyer, Roberts, and Alito) who, to quote football coach Dennis Green, “are who we thought they were.” Given the nature of the nominating and confirmation process these days, is it possible the Court may see another relatively “surprising” justice in the near future? Or are the days of unknown quantities like Justice Souter simply over?

The Souter nomination was an aberration. Souter was a true stealth candidate, largely unknown not only to the public and the Senate but also to the president! Not since Dwight Eisenhower nominated William J. Brennan did a president select a nominee about whom he knew so little—and Eisenhower was far less interested in the ideology of his nominees than was George H.W. Bush.

The most recent nominees are at the opposite extreme. They have been not only federal circuit court judges but Washington insiders: three came to the Court from the Circuit Court of Appeals for the District of Columbia, and the other two had both worked in the Justice Department. They were thoroughly known quantities.

Even if we have a long wait before the next Souter, there is no reason to hope or expect that future nominees will all be as predictable as the last five justices to join the Court. In particular, if presidents draw nominees from further outside the beltway, we may see justices whose views are mildly less predictable—think, for example, of Anthony Kennedy or Sandra Day O’Connor.

Finally, since your book is called The Next Justice, I have to ask: who do you think might be nominated and confirmed for the next few vacancies, contingent on what happens in the next election? Who will they replace? And will we see any changes to the appointment and confirmation processes?

Oh my! I’m not very good at predictions. I am always reminded of that saying about how “prediction is very difficult, especially when it’s about the future.” The quote gets attributed to both Niels Bohr and Yogi Berra, and if those two sages agreed, they must be right. I will venture this, though: if the next president is a Democrat, I suspect that the next nominee will be a woman. A Democratic president might also covet the opportunity to appoint the nation’s first Hispanic justice, so, if I were going to Vegas, I would put some money on the smart, widely respected Judge Sonia Sotomayor of the United States Court of Appeals for the Second Circuit.

In The Next Justice, though, I am less interested in prediction than I am in prescription—in changing the way that we appoint Supreme Court justices. Ideally, I would like to see presidential candidates commit to select nominees who have some moderate credentials, who have not spent much of their career in Washington, and who are not federal circuit court judges.

Let me give three examples, all of whom have sterling legal credentials. One is Chief Justice Ruth McGregor of the Arizona Supreme Court. A former clerk to Sandra Day O’Connor, McGregor has been nominated to Arizona judgeships by both Democratic and Republican governors. A second is Chief Justice Stuart Rabner of the New Jersey Supreme Court, a career prosecutor with experience handling terrorism cases. A final, more provocative example is Governor Jennifer Granholm of Michigan, another former federal prosecutor who served as Michigan’s attorney general and would bring state and local political experience to the Court.

Readers of SCOTUS blog can no doubt make other suggestions that fit my criteria, and I would like to see them. After all, one way to affect who becomes the next justice is for people who care about the Court as an institution to begin offering their own suggestions about who should serve on it, rather than leaving that task to the Federalist Society or other ideologues on either the left or the right.

Thanks again to Professor Eisgruber for participating.