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.
Christopher L. Eisgruber is provost and Laurance S. Rockefeller Professor of Public Affairs at Princeton University. He is the coauthor of Religious Freedom and the Constitution and the author of Constitutional Self-Government. He is a former New York University law professor and a former clerk for Supreme Court Justice John Paul Stevens and U.S. Court of Appeals Judge Patrick E. Higginbotham.
Table of Contents
Preface ix Chapter 1. A Broken Process in Partisan Times 1 Chapter 2: Why Judges Cannot Avoid Political Controversy 17 Chapter 3: The Incoherence of Judicial Restraint 31 Chapter 4: Politics at the Court 51 Chapter 5: Why Judges Sometimes Agree When Politicians Cannot 73 Chapter 6: Judicial Philosophies and Why They Matter 98 Chapter 7: How Presidents Have Raised the Stakes 124 Chapter 8: Should the Senate Defer to the President? 144 Chapter 9: How to Change the Hearings 164 Chapter 10: What Kinds of Justices Should We Want? 178 Chapter 11: The Path Forward 186 Notes 193 Index 225
What People are Saying About This
What an important book this is! With the next president likely to have at least one Supreme Court vacancy to fillan appointment that could make a dramatic difference in the nation's direction for years to comeChristopher Eisgruber lays out a clear set of principles not only for the White House selection process but, more importantly, for Senate confirmation. And Eisgruber's focus is not just on the immediate policy impact; his goal is nothing less than to preserve the Constitution. Mickey Edwards, vice president of The Aspen Institute
Eisgruber's book is vital. The process by which the public and the Senate currently consider Supreme Court nominees is broken. A fresh view is badly needed. The Next Justice provides this, and it has the potential to serve as a handbook to the next confirmation hearing. For all its erudition, the book is clear, brief, and well designed for nonlawyers. It doesn't go too far to predict that the next nominee will be asked many, if not all, of the questions that Eisgruber proposes. Martin S. Flaherty, Fordham Law School
Clearly written and containing many original ideas, this is an excellent book that I have no doubt will be widely read. I particularly enjoyed the chapter on the extent of unanimous Supreme Court rulings and what this means for understanding the role of ideology on the court. Erwin Chemerinsky, Duke Law School
In this sensible and deeply considered book, Christopher Eisgruber tackles one of the most vexatious problems in contemporary American constitutionalism: what to do about the ever more perilous enterprise of Supreme Court nominations. Carefully avoiding a breathless, sensationalist approach to explaining how the Court really works, The Next Justice provides a measured account of how the modern Court has operated and the interpretive doctrines the justices apply. Eisgruber is deeply respectful of the Court, but his expectations of the Senate's role in judicial confirmations also run high. To everyone who worries that the nomination process has become a perverse caricature of what it should be, this book offers a thoughtful and compelling set of proposals for how it might yet be reformed. Jack Rakove, Stanford University
The best short, one-volume, incisive account of what the Supreme Court actually does. Linda Greenhouse, Knight Distinguished Journalist-in-Residence and Joseph M. Goldstein Senior Fellow in Law, Yale Law School
After so many years of speaking past one another on the issue, members of the public now have, in The Next Justice, a new common language with which to discuss the qualifications of Supreme Court nominees. Unapologetically written with a clarity and transparency appropriate for the most general audience, it is a book from which everyoneincluding law professors, legislators, and judges themselvescan learn. With it, Christopher Eisgruber has established himself, along with giants like Ronald Dworkin and Cass Sunstein, among the important public intellectuals of our time. Rebecca L. Brown, Vanderbilt Law School
A superb and provocative treatment of a complex topic. Everyone interested in the future of the Supreme Court, and the nature of constitutional law, will benefit from Eisgruber's careful and exceptionally illuminating analysis. Cass R. Sunstein, University of Chicago Law School
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