The Next Justice

Repairing the Supreme Court Appointments Process

by Christopher L. Eisgruber

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The Next Justice
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Repairing the Supreme Court Appointments Process
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Christopher L. Eisgruber

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Excerpt: The Next Justice

The Next Justice

Repairing the Supreme Court Appointments Process


Princeton University Press

Copyright © 2007 Princeton University Press
All right reserved.

ISBN: 978-0-691-13497-0

Chapter One

A Broken Process in Partisan Times

Late on a January afternoon in 2006, Senator Charles Schumer was goading Samuel Alito to explain his stand on abortion rights. The Senate Judiciary Committee was in its second full day of hearings on Alito, George W. Bush's nominee to succeed Sandra Day O'Connor on the Supreme Court. Twenty-one years earlier, Alito had said that the Constitution did not protect abortion rights. Schumer, a Democrat from New York, wanted to know whether Alito had changed his mind, or whether he continued to oppose abortion rights. Alito repeatedly refused to answer, saying that he did not want to commit himself about an issue that he might have to decide after he reached the Court. "I would address that issue in accordance with the judicial process as I understand it and as I have practiced it," said Alito unhelpfully.

Schumer finally gave up trying to get Alito to answer his question, but not before getting in one last dig at the nominee. Schumer told Alito, "It is ... as if ... a friend of mine ... 20 years ago said to me, ... 'You know, I really can't stand my mother-in-law,' and a few weeks ago I saw him and I said, 'Do you still hate your mother-in-law?' ... And he said, 'Mmm, I can't really comment.' What do you think I would think?" Before Alito could answer, Schumer interrupted and added, "Let me just move on. You have a very nice mother-in-law. I see her right here and she seems like a very nice person."

Schumer's frustration is easy to understand. Senators have rarely made much headway when questioning recent Supreme Court nominees about Roe or any other hot-button controversy. The questions have become routine, and the answers (or nonanswers) follow familiar patterns. These stylized exchanges between senators and nominees are a recent development. Public hearings on Supreme Court nominations did not become common until the 1950s, and, for most of the twentieth century, contested Supreme Court nominations were rare. In the seventy-four years between 1894 and 1968, the Senate rejected only one nominee to the Supreme Court (he was John J. Parker, whom a Republican-controlled Senate rejected by a 41-39 vote in 1930 even though he had been nominated by a Republican president, Herbert Hoover).

During this period, presidents sometimes pursued remarkably bipartisan approaches to appointing justices. Most notably, Dwight Eisenhower, a Republican, selected William Brennan because he wanted to nominate a Catholic Democrat who would appeal to constituencies that might support Eisenhower in the next election. Eisenhower's four other nominees, including California governor Earl Warren and three sitting federal court judges, were moderate Republicans. The Senate confirmed all five Eisenhower nominees by large margins. Warren and Brennan went on to become great liberals, while two of Eisenhower's later appointees, John Marshall Harlan III and Potter Stewart, had distinguished conservative careers. Some people believe that the Eisenhower justices were the best group ever appointed to the Court by a single president.

Eisenhower's appointees left a legacy that made future presidents unlikely to repeat his strategy. The Warren Court thrust itself into political controversies over racial segregation, school prayer, birth control, and the rights of criminal defendants, among other topics. As a result, the Court riveted the attention of voters and interest groups. The days when presidential candidates could ignore the Court in their campaigns, as Eisenhower had done, were over. Some presidential candidates, including both Richard M. Nixon and Ronald Reagan, made opposition to the Court's rulings a centerpiece of their campaigns. Presidents and senators scrutinized the views of Supreme Court nominees with new intensity, and partisan confirmation battles became regular events.

In the four decades since Earl Warren retired, seven nominations have been either rejected by the Senate or withdrawn by the president: two from Lyndon Johnson (Abe Fortas and Homer Thornberry), two from Richard Nixon (Clement Hainsworth and Harold Carswell), two from Ronald Reagan (Robert Bork and Douglas Ginsburg), and one from George W. Bush (Harriet Miers). In addition, George H. W. Bush's nomination of Clarence Thomas survived by a narrow 52-48 vote after a vitriolic debate that focused on allegations of sexual harassment.

During this tumultuous period, three factors have shaped the process for appointing Supreme Court justices: a politically prominent and controversial Court; presidents who sought nominees who would advance their ideological perspectives while on the Court; and Senates that have battled fiercely about whether to confirm those nominees. It is unlikely that any of these features will soon disappear. In such circumstances, the Senate and the public must be able to articulate what kinds of justices they are willing to accept, and must have the opportunity to test whether a particular nominee meets those criteria.

One nominee helped the Senate with that task. After Ronald Reagan nominated him to the Court in 1987, Robert Bork discussed his controversial jurisprudential views at length. The Senate decided that these views were extreme and rejected him. Not surprisingly, more recent nominees have been less candid. They have played it safe, refusing to say anything meaningful about their view of the Constitution and the Court's role. In the post-Bork era, the hearings have become, in the words of Senator Arlen Specter, "a subtle minuet, with the nominee answering as many questions as he thinks necessary in order to be confirmed." A minuet indeed, formal and highly choreographed, with the nominee knowing just how to match each move the senators make.

The Bork hearings were rife with partisan rancor, and they remain intensely controversial. Yet, as Harvard Law School's Dean Elena Kagan observed some years ago, those hearings at least contained "a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee." Since then, hearings have often been no more than "a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis." Or, more precisely, they have been a combination of platitudes, anecdotes, and scandals. Unable to engage nominees about substantive constitutional issues, senators have fished for evidence of wrongdoing. Clarence Thomas was investigated for sexual harassment. Stephen Breyer was questioned about whether he should have recused himself from cases that arguably affected his financial interests. Samuel Alito was asked about his membership in an ultraconservative alumni organization. And so on.

Americans need a better way to talk about Supreme Court appointments, and they need it now, before any president nominates the Court's next justice. The stakes are high. In the summer of 2005, after more than a decade had passed without a single vacancy on the Supreme Court, Justice O'Connor announced her retirement and Chief Justice William Rehnquist died. George W. Bush suddenly had the opportunity to make not one but two appointments. He chose John Roberts to replace Rehnquist and Alito to succeed O'Connor. In his presidential campaigns, Bush had promised to appoint judges like Antonin Scalia and Clarence Thomas, the Court's two most conservative justices. He appears to have kept his promise. During their first two terms on the Court, Roberts and Alito have consistently voted with Scalia and Thomas in important constitutional cases.

Several long-standing constitutional doctrines are now in a precarious position, protected (if at all) by the slender margin of one vote. Another solidly conservative appointment could move the Court dramatically to the right. Scalia and Thomas, who were for many years at the Court's extreme right edge, might soon find themselves with a solid majority. Nobody can say with certainty what such a Court would do. If, however, we take the views of Scalia and Thomas as a guide, it would eliminate constitutional protection for abortion and gay rights; allow public sponsorship of religious ceremonies and programs; prohibit elected officials from implementing affirmative action programs; and limit the power of Congress and state legislatures to protect the environment. Some people will celebrate this possibility, others will lament it, but nobody should doubt that it is real.

Changes of this kind would affect every American. Choosing the next justice will thus be a serious matter indeed. American citizens and politicians need to decide if they want the Court altered so radically. Whether they favor or oppose the transformation, they will need to recognize what kind of nominee is likely to bring it about and what kind of nominee is likely to resist it.

The Job Description of a Supreme Court Justice

This book is about how to choose Supreme Court justices, but it will start with an examination of the Court itself and, more specifically, of how justices decide constitutional cases. This combination of topics is unusual. Many books examine the appointment of Supreme Court justices, and many discuss how the Supreme Court should decide cases, but almost none connect the two subjects. That is a damaging mistake. To decide what kinds of justices we want, and how to get them, we first need to understand exactly what justices do. After all, when good managers search for a new hire, they first create a job description for the position they want to fill. The job description specifies the employee's duties, and the manager can then search for someone with skills and experiences that fit those duties. By the same token, if we want to know what sorts of people would make good Supreme Court justices, we should begin by ensuring that we have a clear understanding of what Supreme Court justices do.

At first, the job description for Supreme Court justices might seem self-evident: their job is to apply the Constitution and other laws to decide important legal controversies. If we try to become more specific, however, complications quickly arise. The justices must interpret and apply the law when its meaning is unclear and contested. How do they decide what the law means in such difficult cases, and what experience and skills must they have in order to do so well?

Public debates about recent Supreme Court nominations have revolved around two manifestly unsatisfactory answers to that question. One view regards Supreme Court justices as neutral umpires who never invoke anything other than their apolitical, technical expertise about legal rules, while a second view treats them as ideologues who decide cases on the basis of a political agenda. Neither of these blunt models provides an adequate account of what justices do or of how to evaluate a nominee to the Court.

For example, at the 2005 hearings on the nomination of John Roberts to be chief justice, Senator Orrin Hatch maintained that the Senate must apply a "judicial rather than a political standard to evaluate Judge Roberts' fitness for the Supreme Court." Hatch emphasized that "judges interpret and apply but do not make the law." For that reason, he said, nominees to the Supreme Court should not have to answer questions about how they would rule in cases that might come before the Court. By answering such questions, nominees would make commitments that would prevent them from being truly "impartial and independent."

Senator Schumer, by contrast, told Roberts that "the most important function of these hearings ... is to understand your legal philosophy and judicial ideology." In particular, said Schumer, the nominee "should be prepared to explain [his] views of the First Amendment and civil rights and environmental rights, religious liberty, privacy, workers' rights, women's rights and a host of other issues." According to Schumer, the Senate had to be able to inquire into judicial ideology because well-qualified justices interpreted the Constitution very differently from one another. "Justice Scalia thinks he is a fair judge and ... Justice Ginsburg thinks she is a fair judge ... but in case after case they rule differently."

Hatch and Schumer articulated two inconsistent views of what Supreme Court justices do and how the Senate should evaluate them. For Hatch, a nominee's political values were irrelevant because judges should be neutral arbiters, more comparable (as John Roberts himself claimed) to umpires than to politicians. For Schumer, a nominee's political values were the crux of the matter because judges vote ideologically.

Each man had part of the truth. Hatch captured fundamental aspects of the judicial role when he said that judges must be "impartial and independent," and that judges have a duty to interpret and apply the law. Yet Schumer was also correct when he pointed out that some justices are identifiably conservative and others are identifiably liberal, and that this difference matters greatly in how they rule. In the end, neither Hatch nor Schumer could be wholly correct because each of them was partially correct. Judges are neither umpires nor ideologues; their role is more complex.

What Justices Do and How to Choose Them

If we want to improve the Supreme Court appointments process, we have to come up with a better account of the tasks that Supreme Court justices perform. The next chapter begins that project. We will look carefully at the text of the Constitution and the challenges it poses. We will also explore the Supreme Court's decision-making procedures, and we will examine the jurisprudence of justices such as Hugo Black, Sandra Day O'Connor, and Antonin Scalia so that we can understand what distinguishes one jurist from another.

This work will take several chapters. Yet we can even now sketch the job description of a Supreme Court justice. Justices cannot be mere umpires whose task is to apply clear instructions in neutral fashion. The reason why is not hard to identify: the Constitution does not provide judges with a clear set of instructions to follow. Unlike the rules of baseball, it speaks in abstract phrases, and nobody can interpret those phrases without making politically controversial judgments. That is why John Paul Stevens, Antonin Scalia, and Ruth Bader Ginsburg (to name only a few examples), who are all excellent lawyers, interpret the Constitution very differently from another. They are not misbehaving, nor are they recklessly imposing their judgments on the country. On the contrary, each of them makes politically controversial judgments because there is no other way for them to do their jobs.

But if it is a mistake to suppose that justices are like umpires, it is likewise a mistake to assume that they are just politicians or ideologues. Although justices must make politically controversial judgments, their decision making differs sharply from that of legislators and other officeholders. For example, justices share a strong commitment to impartiality. That commitment prohibits them from favoring certain persons, groups, constituencies, or causes over others. Justices also share a concern about procedure. Judges' procedural values sometimes produce decisions that are strikingly different from those of other political branches. For example, judges sometimes uphold the rights of notorious criminal defendants who would have received nothing but hostility from elected officials.

Observations of this kind suggest what the job description for Supreme Court justices should look like. The job of a Supreme Court justice will involve, among other things, invoking two kinds of values. Justices will have to appeal to ideological values, by which I mean political and moral values of the sort that distinguish liberals from conservatives. Many of these values will describe what sorts of inequalities are justifiable in a free society. They will include, for example, convictions about whether gay couples are entitled to all the rights enjoyed by heterosexual couples, and about whether it is always wrong for the government to distinguish among persons on the basis of race, even when (as with affirmative action plans) the government's purpose is to aid disadvantaged minorities.

(Continues...)